Exhibition Street Extension Deed Eighteenth Amending Deed

L\319668875.8Exh bition Street Extension Deed Eighteenth Amending Deed

Exhibition Street Extension DeedEighteenth Amending Deed

Tim Pallas MP, Treasurer, and Hon Jaala Pulford MP, Minister for Roads,of the State of Victoria for and on behalf of the Crown in right of the State ofVictoriaState

City Link Extension Pty Ltd (ABN 40 082 058 615)Clepco

Clayton UtzLawyersLevel 18 333 Collins StreetMelbourne VIC 3000GPO Box 9806Melbourne VIC 3001DX 38451 333 Collins VICTel +61 3 9286 6000Fax +61 3 9629 8488www.claytonutz.com

Our reference 332/16013/31049741

L\319668875.8Exhibition Street Extension Deed Eighteenth Amending Deed

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Table of Contents

1. Definitions and interpretation...................................................................................................1

1.1 Definitions ...................................................................................................................11.2 ESEP Deed Definitions...............................................................................................11.3 ESEP Project Document ............................................................................................2

2. Amendments ..............................................................................................................................2

3. Representations and Warranties..............................................................................................2

4. Conditions ..................................................................................................................................2

4.1 General .......................................................................................................................24.2 Specific .......................................................................................................................24.3 Notice of Satisfaction ..................................................................................................24.4 Delegate .....................................................................................................................3

5. Provisions in Full Force ............................................................................................................3

6. Further Assurance .....................................................................................................................3

7. Counterparts...............................................................................................................................3

8. Attorneys ....................................................................................................................................3

Schedule 1 - Amendments..........................................................................................................................7

1. ESEP Deed provisions...............................................................................................................7

2. New Exhibit A – Variation Principles .......................................................................................7

Annexure A - Amendments to the ESEP Deed .........................................................................................8

Annexure B - Exhibit A - Variation Principles...........................................................................................9

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Exhibition Street Extension Deed Eighteenth Amending Deed

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1.3 ESEP Project Document

Each of the State and Clepco agrees that this Deed constitutes an ESEP Project Document.

2. Amendments

Each party agrees that, with effect from the Operative Date, the ESEP Deed is varied in themanner set out in Schedule 1 to this Deed.

3. Representations and Warranties

Insofar as:

(a) a party has, under an ESEP Project Document, made a representation or warrantyin favour of the other party; and

(b) the representation or warranty relates to:

(i) the party's power to, or actions authorising the party to, enter into,execute, deliver or perform an (or any) ESEP Project Document; or

(ii) the capacity in which the party enters into an (or any) ESEP ProjectDocument,

then the party repeats that representation and warranty:

(c) in favour of the party in whose favour it was initially made;

(d) as at the date of this Deed and as at the Operative Date; and

(e) as if the representation and warranty related to this Deed, rather than the relevantESEP Project Documents.

4. Conditions

4.1 General

It is a condition precedent to the coming into operation of this Deed that the Minister (for thepurposes of the Project Legislation) causes, in accordance with Section 15D(4) of the ProjectLegislation, to be published in the Government Gazette a notice of the agreement constitutedby this Deed, specifying the place or places at which a person may inspect the agreementconstituted by this Deed.

4.2 Specific

It is a condition precedent to the coming into operation of clauses 2 and 3 of this Deed thateach of the State and the Clepco has received evidence in form and substance satisfactory toit that the Agent has consented to this Deed.

4.3 Notice of Satisfaction

Each party must notify the other party when it considers that the condition outlined in clause4.2 has been satisfied or it has waived its right to require satisfaction of that condition.

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4.4 Delegate

(a) The State appoints, and Clepco accepts the appointment of, the Chief Executive ofthe Roads Corporation (within the meaning of the Project Legislation) to perform theState's functions, rights and powers under clause 4.3 of this Deed.

(b) The appointment of the Chief Executive of the Roads Corporation under paragraph(a) does not otherwise limit or affect the State's obligations or liability under clause4.3 of this Deed.

5. Provisions in Full Force

The parties agree that each provision of the ESEP Deed remains in full force and effect inaccordance with its terms, except to the extent expressly varied pursuant to this Deed.

6. Further Assurance

Each party shall sign, execute, deliver and do all such acts and things as may reasonably berequired of it to carry out and give full effect to this Deed and the rights and obligations of theparties to it.

7. Counterparts

This Deed may be executed in any number of counterparts and all counterparts taken togetherwill constitute one and the same instrument.

8. Attorneys

Each person executing this Deed as an attorney states that he or she has no notice ofrevocation of the Power of Attorney under which the person acts as attorney.


Annexure A - Amendments to the ESEP Deed

Agreement for the Exhibition Street Extension Project

Act No. 107/1995

AGREEMENT FOR THE EXHIBITION STREET EXTENSIONPROJECTI

THIS CONCESSION DEED made in Melbourne on the 22nd day of April1998

BETWEEN THE HONOURABLE ROBERT R.C. MACLELLAN,MINISTER FOR PLANNING AND LOCALGOVERNMENT OF THE STATE OF VICTORIAFOR AND ON BEHALF OF THE CROWN IN RIGHTOF THE STATE OF VICTORIA (the "State")

AND CITY LINK EXTENSION PTY LTD ACN 082 058 615of Level 43, Rialto South Tower, 525 Collins Street,Melbourne ("Clepco")ii

RECITALS

A. The State is proposing to procure construction of a four laneroadway connecting the City Link with the intersection of Flindersand Exhibition Streets.

B. Clepco has agreed to operate and maintain that roadway subjectto and upon the terms of this Deed.

WITNESSES:

1. DEFINITIONS, INTERPRETATION AND GENERALPRINCIPLES

1.1 Definitions

In this Deed, unless the context otherwise requires:

"Accident Towing Licence Event" means where either:

(a) the Minister fails to authorise sufficient licences under the Accident Towing Services Act 2007 (Vic) to enable the Extension operator to perform its obligations, exercise its rights or carry out its functions under the Accident Towing Services Act 2007 (Vic), the Project Legislation, regulations made under those Acts or this Deed (including the towing of vehicles and removal of debris arising out of or in connection with breakdowns and accidents to a Safe Location); or

(b) VicRoads fails to issue a licence authorised by the Minister for the purposes described in paragraph (a) in circumstances where the proposed licensee has met all relevant requirements of the Accident

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Towing Services Act 2007 (Vic), the Road Management Act 2004 (Vic) and the regulations made under those Acts.

"Act of Prevention" is an act of prevention (which, if anomission, must be an omission in bad faith) of theState or a Victorian Government Agency whichprevents, hinders or disrupts Clepco in theimplementation of the ESEP Project in accordancewith the ESEP Project Documents, or the ability ofClepco to satisfy its obligations under this Deed withrespect to the levying of tolls, unless:

(a) it would not have occurred but for:

(i) a breach of an ESEP Project Documentby, or the negligence or recklessness of,Clepco;

(ii) the occurrence of an event or theexistence of a circumstance the risk ofwhich has been accepted, or theoccurrence of a matter or event,responsibility for which has beenaccepted, by Clepco under the ESEPProject Documents;

(iii) the lack of legal capacity, or corporatepowers of, or breach of duty by, Clepco;

(iv) an act of the State or of a VictorianGovernment Agency in good faith andin the proper exercise of a right grantedby an ESEP Project Document; or

(v) an act taken in good faith which the Stateor the Victorian Government Agency isempowered to take in performance of aduty imposed by Law, but even if takenin good faith this sub-paragraph (v)would not apply to an act if there wasanother act reasonably and practicablyavailable (and not materially moredisadvantageous to the State or theVictorian Government Agency) to fulfilthe duty which, if taken:

(A) would not have constituted an Actof Prevention; or


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(B) would have had a materially lessadverse effect on Clepco; or

(b) it is an event specified in clause 2.9(a);

(c) item 7 of the Appendix applies to it;

(d) the State bears the risk under sub-paragraph12.8(b)(ii) in relation to it;

(e) it is a change of the type described in paragraph4(a), 4(b), 4(c) or 4(d) of the Appendix(without regard to any other paragraph);

(f) paragraph 2.4(b) applies to it;

(g) it constitutes the alteration of any part of the Existing Traffic Environment; (h) it is afailure to provide support required undersub-paragraph 2.4(a)(i) or would have beensuch a failure but for sub-paragraph2.4(a)(i)(E), (F) and (G); or

(ih) it is any change in transport policy.

"Addressee" means the person named on a Request ForPayment or Further Request For Payment. iii

"Adjustment Event" has the meaning given to that term under the City Link Concession Deed.

"Agency Agreement" means the agency agreement madeby Clepco and Transurban City Link Limited ACN070 810 678.

"Agent" has the meaning given it in the Master SecurityDeed.

"Agreed CityLink Financial Model" has the meaning given to that term under the CityLink Option Deed.

"Annual Emergency Exercise" is a substantial exercisewhich may (but is not required to) be physicallyconducted on the Exhibition Street Extension andwhich is designed to:

(a) simulate an emergency on or around theExhibition Street Extension;

(b) simulate a response on the Exhibition StreetExtension to that emergency; and

(c) accurately and comprehensively test andvalidate the emergency, incident and response


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policies, plans, systems, manuals andprocedures (including the Operation andMaintenance Manuals, Operations QualityPlan, Emergency Management Plan andIncident Management Quality Plan, andincluding those referred to or incorporated inthe Operation and Maintenance Manuals,Operations Quality Plan, EmergencyManagement Plan and Incident ManagementQuality Plan) which Clepco has in place.iv

"Annual KPI Report" has the meaning given in section 4(a)(iv) of Part B of Schedule 7.

"Anticipated Transition Services Period" has the meaning given in clause 3.3AE(e)(iii).

"Appendix" is the appendix to this Deed.

"Appendix Event" is each of the events listed in column 1of the Appendix.

"As Built Drawings" means plans, drawings andspecifications relating to the Exhibition StreetExtension, at Delivery, as required to be delivered tothe State by the ESEP Construction Contractorunder the ESEP Construction Contract.

“Assessment Periods” means the assessment periods referred to in each KPI as set out in Part D of Schedule 7.

“Assumed Transport Network Enhancements” has the meaning given to it in the City Link Concession Deed.

"Bank" means each of those banks:

(a) so defined in Section 5(1) of the Banking Act1959 (Cth); or

(b) constituted under the Law of a State orTerritory of Australia and authorised to carry ongeneral banking business.

"Base Case Equity Return" has the meaning given it in theCity Link Concession Deed.

"Base Case Financial Model" has the meaning given it inthe City Link Concession Deed.

"Base Case Traffic Model" has the meaning given it in theCity Link Concession Deed.


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"Bill" has the meaning given to "Bill of Exchange" in theBills of Exchange Act 1909 (Cth), but excludingcheques and payment orders.

"Business Day" is a day on which banks are open forbusiness generally in Melbourne, excluding anySaturday, Sunday or gazetted public holiday.

"CEPA" means the Concession Enhancement Payment Deed between the Company, Clepco and WGT Codated on or around the date of the WGT CityLink and ESEP Concession Amending Deeds.

"City Link" has the meaning given to "Link" in the CityLink Concession Deed.

“City Link Additional Concession Period" means, at any time, the period that then constitutes the Additional Concession Period under the City Link Concession Deed.

“CityLink Base IP” has the meaning given to that term in the City Link Concession Deed.

“CityLink Base Software” has the meaning given to that term in the City Link Concession Deed.

"City Link Concession Deed" means the deed madeby the State, Transurban City Link Limited ACN 070810 678, Perpetual Trustee Company Limited ACN000 001 007 and City Link Management LimitedACN 071 292 647, a copy of which is set out inSchedule 1 to the Project Legislation, as (withoutlimitation to the effect of paragraph 1.2(f)) amendedfrom time to time.v

"City Link Concession Period" means, at any time, theperiod that then constitutes the Concession Periodunder the City Link Concession Deed.

"CityLink Funding Payment" has the meaning given to it in the CEPA.

"CityLink Option Deed" means the deed entitled “CityLink Option Deed” entered into between the State, the Company, the Trustee and Clepco on or about the date of WGT Financial Close.

"CityLink Original Concession Period" means, at any time, the period that then constitutes the Original


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Concession Period under the City Link Concession Deed.

"City Link Project" has the meaning given to "Project" inthe City Link Concession Deed.

"CLEP" has the meaning given it in the City LinkConcession Deed.

"Claim" means any claim, action, demand, suit or proceeding (including by way of contribution or indemnity) made:

(a) in connection with the ESEP Project Documents or the ESEP Project; or

(b) at Law or for specific performance, restitution, payment of money (including damages), an extension of time or any other form of relief.

"Clepco Debt" means any borrowings or other financialaccommodation made available by the Company orthe Trustee to Clepco for the purposes of the ESEPProject or in order for it to perform its obligations orexercise its rights under the ESEP ProjectDocuments.

"CLP WGT Project Documents" means each of:

(a) the Operating Services Agreement (CityLink);

(b) the West Gate Tunnel – CityLink Umbrella Agreement;

(c) the CEPA;

(d) OSA Direct Deed; and

(e) any other documents the parties agree is a CLP WGT Project Document.

"CLUT Works" has the meaning given to it in the City Link Concession Deed.

"Committed Extension Equity" has the meaning given to it in clause 1.24(b).

"Company" means the person defined as such in the CityLink Concession Deed.

"Compensable Enhancement" has the meaning given to it in clause 2.6(f).

"Compensation" means any redress, payment, compensation or debt owing under this Deed.


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"Concession Period" is the period beginning on the date ofDelivery and ending on the date being the earlier ofthe date on which the City Link Concession Periodends and the date of termination of this Deed.

"Condition Review Date" has the meaning given in clause 3.3AE(d).

"Consolidated Handover" means the occurrence of Handover and WGT Handover on or around the same date.

"Construction Contractor" has the meaning given to it inthe City Link Concession Deed.

"Contractor" is:

(a) the Company;

(b) the Operator; and

(c) any other person agreed in writing by theparties.

"Contract Sum" means $35,000,000, as that amount maybe varied in satisfaction of the condition precedent inclause 3.2(e) of the Fourth Amending Deed asadjusted in accordance with clauses 3.4, 3.5 and 7.7and payable by Clepco to the State for the design,construction and Delivery of the Exhibition StreetExtension Works.

"Contract Sum Account" means the account so defined inthe ESEP Contract Sum Payment DirectionsAgreement.vi

"Contract Sum Financial Criteria" means:

(a) the pre-tax nominal internal rate of return or(where the Contract Sum Financial Criteriarelate to an event referred to in paragraph3.4(c)) the post-tax nominal internal rate ofreturn assumed in the Base Case FinancialModel (as, in the context of an estimate underclause 3.5 or 8.1, the Base Case FinancialModel may have been amended for thepurposes of arriving at an earlier estimate underthe relevant clause arising from an eventreferred to in paragraph 3.4(c)) to apply inrelation to a Notional Initial Equity Investoron its investment in Original Project


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Securities, assessed over the entire City LinkOriginal Concession Period (assuming noearly termination of the City Link Concession Period)Original Concession Period). In the period commencing on the date which is 33 years and 6 months after the Link Expected Completion Date (as defined in the City Link Concession Deed) and ending on the expiry of the CityLink Original Concession Period, the pre-tax nominal internal rate of return and post-tax nominal internal rate of return is the same as on the day immediately preceding that year; and

(b) the pre-tax nominal internal rate of return or (where the Contract Sum Financial Criteria relate to an event referred to in paragraph 3.4(c)) the post-tax nominal internal rate of return assumed in the Reference Financial Model to apply in relation to a Extension Notional Initial Equity Investor (as defined in the City Link Concession Deed) on its investment in Extension Project Securities, assessed over the entire City Link Concession Period (assuming no early termination of the City Link Concession Period); and

(c) a loan life cover ratio of 1.6503 determined onthe basis of the calculation outlined in thedefinition of that ratio in the Security TrustDeed and using the Lenders Model.

"Control" has the meaning given in section 50AA of theCorporations Act. Without limitation, an Entity willbe considered to be under the control of another Entityif, under accounting standards (within the meaning ofthe Corporations Act) dealing with the consolidationof financial statements, the Entity would beconsidered to be a subsidiary of the other Entity.vii

"CPI" is:

(a) the All Groups Consumer Price Index WeightedAverage of Eight Capital Cities ("IECC")published quarterly by the Australian Bureau ofStatistics, as long as there is no change in thecoverage, periodicity or reference base fromthose applying at the date of this Deed;


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(b) if there is a change in the coverage of the IECCfrom that applying at the date of this Deed andthe new IECC is linked to previous All GroupConsumer Price Indexes, CPI is the new IECC;

(c) if there is a change in the reference base of theIECC from that applying at the date of thisDeed and the Australian Bureau of Statisticsprovides a conversion factor, that conversionfactor shall be applied to calculate revised CPIfigures for the purpose of this Deed, in terms ofthe new reference base;

(d) if there is a change in the reference base of theIECC from that applying at the date of thisDeed and the Australian Bureau of Statisticsdoes not provide a conversion factor, the partiesmust request the President of the Institute ofActuaries (or the President's nominee) tocalculate revised CPIs for the purposes of thisDeed, and that calculation is final and binds theparties;

(e) if the IECC is published and:

(i) there is a change in its coverage and it isnot linked to previous All GroupsConsumer Price Indexes; or

(ii) there is a change in its periodicity,

the parties must request the President of theInstitute of Actuaries (or the President'snominee) to determine:

(iii) whether the new IECC is appropriate as ageneral indicator of the rate of pricechange for consumer goods and services;or

(iv) if it is not, what other index should beused as a substitute index for the purposeof this Deed,

and the President's determination is final andbinds the parties;

(f) if the IECC is not published and the AustralianBureau of Statistics publishes another indexwhich is:


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(i) a replacement of the IECC; and

(ii) linked to the IECC,

CPIs must be re-calculated to the samereference base as the replacement index;

(g) if the IECC is not published and the AustralianBureau of Statistics publishes another indexwhich is not linked to the IECC, the partiesmust request the President of the Institute ofActuaries (or the President's nominee) tocalculate revised CPIs for the purposes of thisDeed, and that calculation is final and binds theparties; or

(h) if the IECC is not published and the AustralianBureau of Statistics does not publish anotherindex in replacement of the IECC, the partiesmust request the President of the Institute ofActuaries (or the President nominee) todetermine an appropriate index which is ageneral indicator of the rate of price change forconsumer goods and services, and hisdetermination is final and binds the parties.

“CTC Redevelopment Deed” means the deed entitled"CityLink - Tullamarine Corridor RedevelopmentDeed" between the State, the Company and theTrustee dated 6 October 2014.

“CTW Maintenance Activities” has the meaning given tothat term in the City Link Concession Deed.

“CTW Obligations” has the meaning given to that term inthe City Link Concession Deed.

“CTW Project Debt” has the meaning given to that term inthe City Link Concession Deed.

“CTW Project Documents” has the meaning given to thatterm in the City Link Concession Deed.

“CTW Works” has the meaning given to that term in theCity Link Concession Deed.

"Date of Parliamentary Support (CityLink)" means the date when all of the following events have occurred:

(a) the WGT CityLink and ESEP Concession Amending Deeds have been signed and tabled in each House of Parliament;


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(b) the Revocation Period has ended without any revocation (whether in whole or in part) of the WGT CityLink and ESEP Concession Amending Deeds; and

(c) all conditions precedent to the WGT CityLink and ESEP Concession Amending Deeds have been satisfied or waived.

"Date of West Gate Tunnel Completion" has the meaning in the WGT Project Agreement.

"Debt Recovery Cycle Requirement" means that if Clepco or an authorised person of Clepco provides notification to the Enforcement Agency within 180 days of the use of a vehicle in the toll zone which appears to be liable to pay the toll and fee, the Enforcement Agency must not refuse to:

(a) serve an infringement notice under section 77(1)(b)(ii) of the Project Legislation; or

(b) commence proceedings against a person in accordance with section 77(1)(b)(ii) of the Project Legislation,

solely on the basis of the timing of the notification by Clepco.

"Deed" is this deed.

"Default Rate" is, in relation to an amount owing butunpaid, the aggregate of 2% per annum and:

(a) subject to paragraph (b), in relation to theperiod from and including the date on which theamount fell due for payment, the ReferenceRate applicable on that date; and

(b) (if interest on that amount capitalises underclause 11.7), in relation to each period from andincluding the date on which such interestcapitalises to and excluding the earlier of thedate on which interest on the amount ceases toaccrue and the next date on which such interestcapitalises, the Reference Rate applicable onthe date of commencement of the relevantperiod.

"Delivery" occurs when:


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(a) the Exhibition Street Extension Works havebeen completed in accordance with the ESEPSpecification and the ESEP DesignDocumentation except for:

(i) if the Southern Link has not beenCompleted (as each of those expressionsis defined in the City Link ConcessionDeed), works comprising Part C underthe ESEP Construction Contract; and

(ii) defects or omissions which;

(A) are minor;

(B) do not adversely affect the use ofthe Exhibition Street Extensionby the public for the continuouspassage of vehicles or the safety ofthat use; and

(C) do not adversely affect the abilityof Clepco to perform itsobligations under the ESEPProject Documents; and

(b) the State has performed all its obligations underthis Deed (whether relating to the ExhibitionStreet Extension Works or not but excludingthose obligations addressed by paragraph (a))which are required to be performed beforeDelivery.

"Dispute Resolution Schedule" means the document setout in Schedule 4 identifying certain clauses of thisDeed and allocating them, for the purposes of Article16, into two parts, Part A and Part B.

"Early Termination Amount" means, at any time, anamount calculated as follows:

(a) first, by changing the assumptions andinformation in the models to reflect thetermination of this Deed at that time and theconsequences of that termination; and

(b) second, by determining the amount which mustbe paid by the State so that the results of theoperation of the models (as adjusted inaccordance with paragraph (a)) are consistent


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with those of the Contract Sum FinancialCriteria pertinent to the relevant models.

In this definition the "model" to be used for aparticular purpose at a particular time is either theBase Case Financial Model or the Financial Modelas would be used if clause 2.12(d) of this Deedapplied.

In addition to the amount calculated above, the Early Termination Amount will also include any reasonable costs and expenses incurred by Clepco or the Company under the Operating Services Agreement (CityLink) as a result of:

(c) where the Operating Services Agreement (CityLink) is terminated, the Operating Services Agreement (CityLink) being terminated; and

(d) otherwise, the works and services relating to the ESEP Project being omitted from the scope of the Operating Services Agreement (CityLink).

"EIS" is an environmental impact statement prepared by theCommonwealth pursuant to the Environment (Impactof Proposals) Act 1974 (Cth).

"Emergency Management Plan" is the major emergencyplan developed by Clepco in conjunction with theEmergency Services and VicRoads in accordancewith the ESEP O & M Requirements.viii

"Emergency Services" means the following State services:

(a) Victoria Police;

(b) State Emergency Service ("SES");

(c) Metropolitan Fire and Emergency ServicesBoard ("MFESB");

(d) Metropolitan Ambulance Service ("MAS");

(e) State Traffic Co-Ordinator; and

(f) any other State emergency service that may berequired to respond to an emergency in relationto the Exhibition Street Extension.ix

"Enforcement Agency" has the meaning given to it underthe Project Legislation.x


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"Enterprise-wide Subcontract" means a subcontract entered into between a member of the Transurban Group and a subcontractor who is not a member of the Transurban Group for both:

(a) the performance of all or part of the operation, maintenance or repair of the Exhibition Street Extension that is the subject of an ESEP Service Agreement; and

(b) the supply of goods or services, or granting of rights used to supply those goods or services for at least one other toll road operated by a member of the Transurban Group, such other toll road not being limited to WGT.

"Entity" has the meaning given in section 64A of theCorporations Act but is deemed to include a "jointventure" within the meaning of Australian AccountingStandard 19.xi

"Environment Protection Act" is the EnvironmentProtection Act 1970 (Vic).

"EPA" is the Environment Protection Authority establishedunder the Environment Protection Act.

"Equity Investor" is, at any time, an Entity who holdsProject Securities at that time.xii

"Equity Return" has the meaning given it in the City LinkConcession Deed.

"ESEP Ancillary Works and Operations" means, at anytime, the works and activities then used or undertakenfor the purpose (or dominant purpose) of designing,constructing, commissioning, operating, maintaining,repairing or facilitating the use of:

(a) a system (including overhead equipment):

(i) on or adjacent to the ESEP Land; and

(ii) by which vehicles designed for thetransportation of passengers are:

(A) guided by means of a tramwaytrack with a gauge of not less than600 mm; and


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(B) utilised to provide publictransportation services (whether ornot for a fee);

(b) a system of traffic signals (including relatedSCRAM communications) at:

(i) the intersection of Exhibition Street andFlinders Street;

(ii) the intersection of the Exhibition StreetExtension and the route taken byvehicles of the type referred to insub-paragraph (a)(ii) (being theintersection where access is to beprovided to the north car park for theMelbourne Park tennis centre);

(iii) the intersection of Batman Avenue andSwan Street; and

(iv) the new pedestrian crossing to beprovided on Batman Avenue to allowaccess to Melbourne Park tennis centre;

(c) drainage structures not included in theExhibition Street Extension for the purposesof clause 10.1(d).

"ESEP Ancillary Works Contractor" means, at any time,a person then engaged in any ESEP Ancillary Worksand Operations.

"ESEP Construction Contract" means the constructioncontract entered into by the State with the ESEPConstruction Contractor on 3 October 1997 or anyreplacement contract in the same or substantially thesame form.

"ESEP Construction Contractor" means John HollandConstruction & Engineering Pty Ltd ACN 004 282268 or any replacement contractor.

"ESEP Contract Sum Payment Directions Agreement"means the agreement so entitled made between theCompany, Perpetual Trustee Company Limited ACN000 001 007, City Link Management Limited ACN071 292 647, Clepco, Commonwealth Bank ofAustralia ACN 123 123 124, Australia and NewZealand Banking Group Limited ACN 005 357 522and the State.xiii


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"ESEP Deed of Charge" is the deed of fixed and floatingcharge and mortgage receipt of which in form andsubstance satisfactory to the State was acknowledgedby the State in the Fourth Amending Deed.xiv

"ESEP Deed of Guarantee and Indemnity" is a deedexecuted by the Company receipt of which in formand substance satisfactory to the State wasacknowledged by the State in the Fourth AmendingDeed.

"ESEP Design Documentation" means the drawings,specifications and other information, samples, models,patterns and the like and includes software, data,methods of working or any other material or processrequired by the ESEP Construction Contract andcreated (and including, where the context so requires,those to be created by the ESEP ConstructionContractor) for the construction of the ExhibitionStreet Extension Works.

"ESEP Eighth Amending Deed" means the deed entitled"Exhibition Street Extension Eighth Amending Deed"made between the parties to this Deed pursuant towhich amendments were effected to this Deed.xv

"ESEP ETTM Works" means the works set out inSchedule 5.

"ESEP Land" means:

(a) the land on which the Exhibition StreetExtension is, or is to be, constructed (includingits piers, foundations and abutments); and

(b) such land, if any, adjoining or under the landreferred to in paragraph (a) as is necessary forClepco to have possession of in order for it toperform its obligations and exercise those of itsrights under this Deed and the Lease that willor may be performed or exercised afterDelivery,

but otherwise excluding any land which forms part ofthe PTC Land Access Area or is outside the ESEPProject Area.

"ESEP O & M Requirements" are the requirementsoutlined in the document entitled "ESEP O & M


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Requirements" initialled by or on behalf of the partieson or before the date of this Deed.

"ESEP Project" is the operation, maintenance and repair ofthe Exhibition Street Extension in accordance withthis Deed.

"ESEP Project Area" has the same meaning as ExtensionProject Area in the Project Legislation.

"ESEP Project Debt" is at any time the amount set out forthat time in the column headed “ESEP Project Debt”in Schedule 5 to IFA. The Company and the Trusteeshall be deemed to be no longer liable in respect ofESEP Project Debt at any time if no amount is set outin that schedule in respect of that time.xvi

"ESEP Project Documents" are:

(a) this Deed;

(b) the Lease;

(c) the ESEP Deed of Guarantee and Indemnity;

(d) the ESEP Deed of Charge;

(e) the Master Security Deed;

(f) IFA;

(g) any licence of the Proprietary Documentationgranted to the State under clause 7.5(c); and

(h) all other material documents and agreements(other than Lending Documents) agreed by theState and Clepco to be ESEP ProjectDocuments.

"ESEP Service Agreement" means a subcontract entered into between:

(a) the Operator; and

(b) a member of the Transurban Group (other than the Operator or Clepco),

for all or part of the operation, maintenance or repair of the Exhibition Street Extension.

"ESEP Seventh Amending Deed" means the deed entitled"Exhibition Street Extension Seventh AmendingDeed" made between the parties to this Deed pursuantto which amendments were effected to this Deed.xvii


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"ESEP Third Amending Deed" means the deed entitled"Exhibition Street Extension Third Amending Deed"made between the parties to this Deed pursuant towhich amendments were effected to this Deed.xviii

"ESEP Specification" means at any particular time thespecification entitled "ESEP Specification" initialledby or on behalf of the parties on or before the date ofthis Deed, as may be changed under clause 7.7.

"Event of Default" means , subject to clauses 9A.8(c) and 12.14, a breach of obligation or warranty imposed onor given by Clepco under an ESEP ProjectDocument (other than a breach of any obligationprovided for in Article 18 or a breach of any warranty given in accordance with the Variation Principles), ora representation made by Clepco in an ESEP ProjectDocument being untrue when made or repeated:

(a) the consequences of which are material;

(b) in relation to which:

(i) damages adequate to compensate theState and users of the Exhibition StreetExtension for those consequences or anorder for specific performance cannot beobtained by the State for the breach ormisrepresentation; or

(ii) if such adequate damages are awarded tothe State consequent upon it suingClepco or an order for specificperformance is obtained by the Stateconsequent upon it seeking such an order,either:

(A) payment of the damages awardedis not made, otherwise thanbecause of restrictions imposed bythe Master Security Deed; or

(B) there is a failure to observe theterms of the order for specificperformance;

(c) a notice of which has been given by the State toClepco; and

(d) in relation to which either of the followingapplies:


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(i) Clepco has not diligently pursued aremedy or the overcoming of the relevantconsequences of the breach ormisrepresentation since the expiration of20 Business Days after receipt of thatnotice; or

(ii) if there has been such diligent pursuit, itceased before the breach ormisrepresentation was remedied or theconsequences of it were overcome;

provided, however, that if (and for so long only as)Project Debt is outstanding:

(e) the breach of the obligation or warranty, therepresentation being untrue or the failure (asapplicable), must affect adversely users of theroad constituted by the Exhibition StreetExtension (or a material part of that road); and

(f) damages for the breach, the representationbeing untrue or the failure must not adequatelycompensate for that adverse affect.

"Excluded Interest" has the meaning given to it in theESEP Contract Sum Payment DirectionsAgreement.xix

"Exempt Vehicle" is:

(a) a police vehicle;

(b) an ambulance;

(c) a fire service unit;

(d) a State Emergency Service vehicle;

(e) a vehicle of the Australian Defence Force,conveying any of its members or property whileon march or duty;

(f) a vehicle being utilised in the performance ofemergency services under authority of a statuteor the State; or

(g) a vehicle insofar as it is used on ESEP Land inconnection with ESEP Ancillary Works andOperations (including vehicles used bypersonnel engaged to maintain such works andoperations).


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"Exhibition Street Extension" means a four lane roadwayand associated footpaths extending on an elevatedstructure from the intersection of Flinders andExhibition Street in a general south easterly directionto grade and then to Batman Avenue, and from thereproceeding through and beyond the intersection ofBatman Avenue and Swan Street, a plan of which isincluded in the Exhibit, and incorporating the curb ofthe median strip intended for use by vehicles of thetype referred to in the definition of "ESEP AncillaryWorks and Operations".

"Exhibition Street Extension Works" means the workswhich are necessary for, and which are undertaken byor on behalf of the State in order for, Delivery tooccur.

“Extension Base Case Equity Return” has the meaning given it in the City Link Concession Deed.

“Extension Equity Investor” has the meaning given it in the City Link Concession Deed.

“Extension Equity Return” has the meaning given it in the City Link Concession Deed.

"Existing Traffic Environment" is at any time the existing traffic environment described in paragraph 2.5(l).Extension Notional Initial Equity Investor" has the meaning given it in the City Link Concession Deed.

“Extension Project Securities” has the meaning given it in the City Link Concession Deed.

“Extension Relevant Period” has the meaning given it in the City Link Concession Deed.

"Final Expiry Date" means the anticipated date of expiry of the Concession Period in accordance with the definition of Concession Period and assuming no early termination of this Deed. As at the Date of Parliamentary Support (CityLink), the Final Expiry Date is 13 January 2045.

"Financial Model" has the meaning given it in the CityLink Concession Deed.

“FMS Failure” has the meaning given to that term under the City Link Concession Deed.


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“FMS Operating Agreement” has the meaning given to that term under the City Link Concession Deed.

"Force Majeure Event" is any one or more of or acombination of:

(a) any fire, flood, hurricane, explosion,earthquake, natural disaster, sabotage, act of apublic enemy, war (declared or undeclared),revolution, radioactive contamination or toxicor dangerous chemical contamination, riot, civilcommotion or blockade; or

(b) any event which is beyond the reasonablecontrol of Clepco,

the risk of which is not reasonably capable ofadequate insurance in the commercial insurancemarket on reasonable terms and (either separately ortogether) causes Clepco to be unable to perform anyone or more of its obligations to the State under theESEP Project Documents, where that cause couldnot have been prevented, overcome or remedied bythe exercise of a standard of care and diligenceconsistent with that of a prudent person undertakingthe obligation without that prudent person having anyexpectation of relief from performing that obligation,including the expenditure of all reasonable sums ofmoney;

but in respect of an event in paragraph (b) and withoutlimiting paragraph (a) does not include:

(c) any event, the risk of which is or the occurrenceof a matter or event responsibility for which hasbeen accepted by Clepco under this Deed,including clause 12.3 of this Deed;

(d) any event or combination of events referred toin column 1 of Items 1 to 7 of the Appendix;

(e) lack of financial or technical resources;

(f) mechanical, electrical or equipment breakdown;

(g) any change in Law; or

(h) any industrial action.

"Forecast Delivery Date" means 4 December 1999.


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"Forecast Enhancement Cashflows" has the meaning given it in the City Link Concession Deed.

"Fourth Amending Deed" means the deed so entitled madeby the State, Transurban City Link Limited ACN 070810 678, Perpetual Trustee Company Limited ACN000 001 007 and City Link Management LimitedACN 071 292 647.

"Further Request For Payment" means a further RequestFor Payment sent to an Addressee following thesending of a Request For Payment to that Address inrelation to any or all of the Trips (in accordance withthe meaning of Trip in the Toll Calculation Scheduleas set out in Schedule 4 to the IFA) the subject of thatRequest For Payment.xx

"Further Request For Payment Cap" means, at any time,the sum of the Ongoing Costs Cap, the ProjectDevelopment Costs Cap and the Further Request ForPayment Costs Cap at that time.

"Further Request For Payment Costs Cap" means,subject to any review pursuant to clause 9.2B(d):

(a) (a) at any time up to and including 30 June 2008, $9.50 (inclusive ofGST);

(b) (b) at any time during each financial year after 30 June 2008, the amount(inclusive of GST) calculated in accordancewith the following formula:

Further Request For Payment Costs Capt+1 = Further Request For Payment CostsCap t x Indext

where:

Further Request For Payment Costs Capt+1 is the Further Request For PaymentCosts Cap per Request For Payment toapply in the relevant financial year

Further Request For Payment Costs Capt

is the Further Request For Payment CostsCap per Request For Payment whichapplies in the financial year preceding therelevant financial year


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Indext is the most recently available CPIfor a quarter preceding commencement ofthe relevant financial year (CPIt-1)divided by CPI for the correspondingquarter in the financial year preceding therelevant financial year (CPIt-2).

The Further Request For Payment Costs Cap (ascalculated above) reflects the estimated average costof Clepco per Further Request For Payment, properlyincurred, of producing, sending, dealing withenquiries, complaints and disputes on, and processingpayments for Further Requests For Payment anddriver nominations (without double-counting anyamounts already included in the Request For PaymentCap)."Good Practice Operator" means an operatorof an undertaking similar to that of the ExhibitionStreet Extension, performing its obligations with alevel of skill, diligence, prudence, foresight andexperience which is in the top quartile of internationaloperators of similar undertakings and, any reference tothe standard of a Good Practice Operator is areference to that level of skill, diligence, prudence,foresight and experience.xxi

"Government Agency" is any government or anygovernmental, semi-governmental or administrativeentity, agency or authority and includes a Minister ofthe Crown (in any right), excluding a municipalgoverning body.

"Government Directed Benefit" means, in relation to anAppendix Event:

(a) a change of the type described in paragraphs(a), (b) or (c) of item 4 of the Appendix or achange in management or operation of the (orany part of the) Melbourne transportationnetwork (including the public transportnetwork), the implementation of a policy thataffects that (or any part of that) network or theexercise of any right or power to whichparagraph 2.4(b) applies; or

(b) the acceleration or early adoption orimplementation of such a change or such athing,


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the adoption, implementation, exercise or accelerationof which:

(c) is not required under paragraph 2.4(a);

(d) is specifically for the purpose of redressing theadverse effect of an Appendix Event on thecapacity, ability, level or timing referred to inthe definition of "Material Adverse Effect";

(e) occurs after that Appendix Event; and

(f) is notified by the State to Clepco.

"GST" has the same meaning as it has in the GST Act.xxii

"GST Act" means the A New Tax System (Goods andServices Tax) Act 1999 of the Commonwealth.xxiii

"GST law" has the same meaning as it has in the GSTAct.xxiv

"GST rate" means the percentage rate of goods andservices tax payable under the GST Act as specified inany of the:

(a) A New Tax System (Goods and Services TaxImposition - General) Act 1999; or

(b) A New Tax System (Goods and Services TaxImposition - Customs) Act 1999; or

(c) A New Tax System (Goods and Services TaxImposition - Excise) Act 1999; or

(d) any other Act that specifies the percentage rateof goods and services tax payable under theGST Act.xxv

“Handover” means the stage when Clepco has done everything that this Deed requires to enable Clepco to handover the Exhibition Street Extension in the Handover Condition in accordance with clause 3.3AG.

"Handover Bond" has the meaning given in clause 3.3AE(i)(ii).

"Handover Bond Reference Amount" has the meaning given in clause 3.3AE(e)(iv).

"Handover Clauses" means clauses 3.3AA to 3.3AQ of this Deed.


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“Handover Condition" has the meaning given in clause 3.3AD.

"Handover Matters Agreement Notice" has the meaning given in clause 3.3AF(d)(i).

"Handover Matters Disagreement Notice" has the meaning given in clause 3.3AF(d)(ii).

"Handover Matters Notice" has the meaning given in clause 3.3AF(c).

"Handover Reviewer" means a person with suitable expertise and experience appointed as the independent reviewer for Handover in accordance with clause 3.3AE(a). "Handover Services" has the meaning given in clause 3.3AE(e)(i).

"House of Parliament" means each of the Legislative Assembly and the Legislative Council of the Parliament of Victoria.

"IFA" means the Integration and Facilitation Agreementmade by the State, Clepco, Transurban City LinkLimited ACN 070 810 678, Perpetual TrusteeCompany Limited ACN 000 001 007 and City LinkManagement Limited ACN 071 292 647 on or aboutthe date of this Deed.

"IFA Ninth Amending Deed" means the deed entitled"City Link and Extension Projects Integration andFacilitation Agreement Ninth Amending Deed" datedon or about June 2002 between the parties to IFA.xxvi

“IFA Twenty-second Amending Deed” has the meaninggiven to that term in the City Link Concession Deed.

"Incident Management Quality Plan" means the qualitymanagement plan relating to the management ofincidents as described in the ESEP O & MRequirements.xxvii

"Insurance Proceeds Account" is the account referred toin clause 11.3.

"Intellectual Property Right" is any present or future trademark, trade name, copyright, patent, or otherintellectual property right.

"Key Subcontract" means the Operating Services Agreement (CityLink) as replaced in accordance with clause 10.6(a)(iii).


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"Key Subcontractor" means the Operator as replaced in accordance with clause 10.6(a)(iii).

"KPI" means a key performance indicator as set out in Part D of Schedule 7.

"KPI Assessment System" has the meaning given in clause 9A.1(a).

"KPI Audit Notice" has the meaning given in clause 9A.4(b).

"KPI Auditor" has the meaning given in clause 9A.4(c)(i).

"KPI Auditor's Report" has the meaning given in clause 9A.4(d).

"KPI Benchmark" means the performance benchmarks in respect of each KPI as set out in Part D of Schedule 7.

"KPI Cap Default" means where:

(a) [not used]; or

(b) in any full financial year after the end of the CityLink Original Concession Period, Clepco has accrued KPI Points in relation to Operation and Maintenance KPIs in excess of the maximum annual Operations and Maintenance KPI Points Caps,

and such exceedance has been reported in any Quarterly KPI Report or Annual KPI Report.

"KPI Data" means the data contemplated under clauses 9A.3(a)(iii) and 9A.3(a)(iv).

"KPI Event" means, in respect of a KPI, a failure to meet the KPI Benchmark for that KPI, measured at the time and in the manner set out in Part D of Schedule 7 (as applicable).

"KPI Liability" means the Operations and Maintenance KPI Liability (if any) for a financial year.

"KPI Points Cap" means the Operations and Maintenance KPI Points Cap.

"KPI Points" means the points accrued by Clepco in accordance with Part D of Schedule 7 (as applicable) in respect of each KPI Event.

"KPI Regime" means the regime for the measurement of Clepco's performance and the associated rights and obligations of the parties in respect of the KPIs and


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the applicable KPI Benchmarks as set out in clause 9A and Schedule 7.

"Law" is:

(a) those principles of law or equity established bydecisions of courts;

(b) statutes, regulations or by-laws of theCommonwealth, the State of Victoria or aGovernment Agency;

(c) the Constitution of the Commonwealth;

(d) binding requirements and mandatory approvals(including conditions) of the Commonwealth,the State of Victoria or a Government Agencywhich have the force of law; and

(e) guidelines of the Commonwealth, the State ofVictoria or a Government Agency which havethe force of law.

"Lease" is a lease by the State to Clepco in the formcontemplated in clause 3.2(k)(ii) of the FourthAmending Deed (as that form may be amended priorto execution of the lease by agreement between theState and Clepco).

"Lender" has the meaning given it in the Master SecurityDeed.

"Lenders Model" means the financial model, andassumptions and information incorporated in themodel, which the State has approved as the "LendersModel" in satisfaction of a condition outlined inclause 3.2 of the Fourth Amending Deed.

"Lending Documents" has the meaning given it in the CityLink Concession Deed.

"Link control room" has the meaning given it in the City Link Concession Deed.

"Link Expected Completion Date" has the meaning given it in the City Link Concession Deed.is 14 July 2000.

"Maintenance and Repairs Account" is the account referred to in clause 11.2 (noting that, in certain circumstances, an account established under the Security Trust Deed is deemed to constitute the Maintenance and Repairs Account).


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"Major Transport Network Changes" are the changesspecified in Exhibit J to the City Link ConcessionDeed.

"Master Security Deed" is the deed between the State, theCompany, the Trustee, Australian and New ZealandBanking Group Limited ACN 005 357 522 and ANZCapel Court Limited ACN 004 768 807 dated 30October 1995.

"Material Adverse Effect" is a material adverse effect on:

(a) the financial capacity of Clepco to declare ordistribute dividends on ordinary shares inClepco or to repay Clepco Debt or the abilityof the Company or the Trustee to repay theProject Debt and, CTW Project Debt andWGT Project Debt in accordance with theamortisation schedule set out in schedule 5 and5, 5A and 5B to IFA (without regard to anyacceleration of the obligation to repay); orxxviii

(b) the level or timing of revenues (after excludingany GST paid or payable by Clepco in respectof such revenues) or of outgoings incurred orpaid in respect of the ESEP Project.xxix

"Material Subcontract" means any subcontract (other than an Enterprise-wide Subcontract and an ESEP Service Agreement) for all or part of the operation, maintenance and repair of the Exhibition Street Extension:

(a) the annual value of which exceeds $5,000,000 (escalated by reference to CPI); or

(b) which, when aggregated with the annual value of each other subcontract for the operation, maintenance and repair of the Exhibition Street Extension which remains in effect and which was entered into by the same subcontractor in the preceding 12 month period (other than a subcontract referred to in paragraph (a)), will result in the total annual value of those contracts exceeding $5,000,000 (escalated by reference to CPI).

"Melbourne City Link Authority Act" is the MelbourneCity Link Authority Act 1994 (Vic).


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“Model Variation Event” means:

an Appendix Event which is agreed or determined has (a)had or will have a Material Adverse Effect;

a Compensable Enhancement;(b)

Not used; (c)

termination of the WGT Project Agreement prior to (d)the WGT Date of Tolling Completion; or

a Variation is implemented in accordance with clause (e)7.6,

which results in a permanent adjustment to the level or timing of revenues or of outgoings in respect of the Project, Equity Return, the Extension Equity Return, the Forecast Enhancement Cashflows, the Project Debt, the CTW Project Debt, the WGT Project Debt (which in the case of a Compensable Enhancement will take into account only the projected revenue to be retained by Clepco).

"NEVDIS" means the National Exchange of Vehicle andDriver Information System used to facilitate theexchange of driver licensing, vehicle registration andwritten off vehicle information between the Australianstates and territories.xxx

"New ESEP Subcontract" has the meaning given in clause 3.3AH(b)(ii)B or clause 3.5AH(c)(ii), as the context requires.

"Notional Initial Equity Investor" has the meaning givento it in the City Link Concession Deed.

"OHS Legislation" means all Laws in connection with occupational health and safety including the Occupational Health and Safety Act 2004 (Vic), the OHS Regulations and all other regulations made under the Occupational Health and Safety Act 2004 (Vic).

"OHS Regulations" means the Occupational Health and Safety Regulations 2017 (Vic).

"Ongoing Costs Cap" means, subject to any reviewpursuant to clause 9.2B(d):


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(a) (a) at any time up to and including 30 June 2008, $10 (inclusive of GST);

(b) (b) at any time during each financial year after 30 June 2008, the amount(inclusive of GST) calculated in accordancewith the following formula:

Ongoing Costs Capt+1 = Ongoing CostsCapt x Indext

where:

Ongoing Costs Capt+1 is the OngoingCosts Cap per Request For Payment toapply in the relevant financial year

Ongoing Costs Capt is the Ongoing CostsCap per Request For Payment whichapplies in the financial year preceding therelevant financial year

Indext is the most recently available CPIfor a quarter preceding commencement ofthe relevant financial year (CPIt-1)divided by CPI for the correspondingquarter in the financial year preceding therelevant financial year (CPIt-2),

The Ongoing Costs Cap (as calculated above) reflectsthe estimated average cost of Clepco per Request ForPayment, properly incurred, of, identifying,producing, sending, dealing with enquiries,complaints and disputes on and processing paymentsfor Requests For Payment and driver nominations aswell as the direct cost, if any, incurred by Clepco inobtaining information under section 90(1) of theProject Legislation or from NEVDIS identifying theowner of the Vehicle the subject of the Request ForPayment.

"Operations and Maintenance KPI Liability" has the meaning given in section 2(a)(ii) of Part B of Schedule 7.

"Operations and Maintenance KPI Points Cap(s)" has the meaning given in section 3(b) of Part B of Schedule 7.


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"Operations and Maintenance KPIs" means the KPIs set out in Part D of Schedule 7.

“OpCo” means Transurban Vic Op Co Pty Limited ACN 621 893 945.

"OpCo Effective Date" means the later of:

(a) the date specified in the Operator OpCo Notice as being the date on which the identity of the Operator is to change, which date must be no earlier than the date of the Operator OpCo Notice and no later than the Date of West Gate Tunnel Completion; and

(b) the date on which the OSA Direct Deed has been signed and all conditions to its coming into operation have been satisfied or waived.

"Operating and Maintenance Agreement" is theagreement between the Company and the Operatorfor, among other things, the operation andmaintenance of the Exhibition Street Extension.

"Operating Default" is a failure by Clepco to perform anyof its obligations under clause 9.1(a), clause 9.2(a),(d), (e), and (f), clause 9.4(a), (c), clause 9.5, clause9.6(c) or clause 10.1 which:

(a) materially adversely affects the maintenance orroutine operation of the Exhibition StreetExtension or any material part of it; or

(b) increases the risk of imminent death orimminent injury to those using the ExhibitionStreet Extension or any part of it.

"Operating Services Agreement (CityLink)" means the agreement entitled “Operating Services Agreement –CityLink and Exhibition Street Extension” to be entered into between the Company and the Operator to carry out operation, maintenance and repair activities in respect of (amongst other things) the Exhibition Street Extension.

"Operation and Maintenance Manuals" are the manualsprepared in accordance with clause 8.4.

"Operational Committee" means the committeeestablished in accordance with clause 9.16 of the CityLink Concession Deed.xxxi


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"Operations Quality Plan" means the quality planprepared by or on behalf of Clepco which details allprocesses involved in the operation and maintenanceof the Exhibition Street Extension and contains theincident management policy and procedures inaccordance with the ESEP O & M Requirements.xxxii

"Operator" is Translink Operations Pty Ltd ACN 069 691 514 and includes any other person who in addition or in substitution is engaged by Clepco or the Companyto operate and maintain the whole or part of theExhibition Street Extension means:

(a) prior to the OpCo Effective Date, Translink Operations Pty Ltd ACN 069 691 514; and

(b) on and from the OpCo Effective Date, OpCo,

and as subsequently replaced in accordance with clause 10.6(a).

"Operator OpCo Notice" means the written notice from the Company to the State notifying the State that OpCo will be the Operator, and the proposed date from which this will be effective.

“Original Equity Investor” has the meaning given it in the City Link Concession Deed.

“Original Project Securities” has the meaning given it in the City Link Concession Deed.

"OSA Direct Deed" means the document entitled "Operating Services Agreement Direct Deed –CityLink and Exhibition Street Extension" to be entered into between the State, the Company and the Operator.

"Outstanding Matters Report" has the meaning given to it in clause 3.3AE(e).

"Permitted Non-Road Revenue" is revenue derived orwhich may be derived from an activity or use forwhich the State's prior approval is required underclause 9.4(c).

"Plant" is all plant, machinery, equipment, fixtures,furniture, fittings and other improvements whichClepco, any Contractors, the ConstructionContractor or any other person acting on its behalfinstalls, constructs or places on the ESEP Land and


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which is or becomes part of the Exhibition StreetExtension or which is used for operating, tolling ormaintaining the Exhibition Street Extension, butexcluding all plant, machinery, equipment and otheritems used by Clepco, the Contractors or theConstruction Contractor solely for the purpose ofenabling or facilitating execution of the ESEP ETTMWorks which are not and will not become part of theExhibition Street Extension or are not and will notbe used for operating, tolling or maintaining theExhibition Street Extension.

"Principal Contractor" has the meaning given in the OHS Legislation.

"Progressive State Contributions" has the meaning given to that term in schedule 38 of the WGT Project Agreement.

"Project Debt" has the meaning given it in the City LinkConcession Deed (interpreted in accordance withIFA).

"Project Default" means, subject to clauses 9A.8(c) and 12.14, any of the following:

(a) a breach of an obligation or warranty imposedon or given by Clepco under an ESEP ProjectDocument (other than a breach of anyobligation provided for in Article 18 or a breach of any warranty given in accordance with the Variation Principles) or a representation madeby Clepco in an ESEP Project Documentbeing untrue when made or repeated which(whether alone or together with other breaches)materially and adversely affects for a period ofmore than 30 days (or such other period as theState and Clepco may from time to time agree):

(i) access to, or the condition or availabilityof, the Exhibition Street Extension (or amaterial part of it);

(ii) the level of service afforded to users ofthe Exhibition Street Extension (or tousers of a material part of the ExhibitionStreet Extension), including:

(A) the price for the provision of thatservice; or


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(B) the performance of the TollingSystem,

relative to the level of that servicecontemplated in the ESEP ProjectDocuments and the Base Case TrafficModel; or

(iii) the level of safety of users of, and thosein the vicinity of, the Exhibition StreetExtension (or of a material part of it);

(b) a breach of an obligation:

(i) in relation to insurance under Article 13or clause 11.3;

(ii) under clause 14.5 (change in ownership),

being a breach the consequences of which arematerial.

"Project Development Costs Cap" means:

(a) (a) at any time up to and including 30 June 2011, $2 (inclusive of GST);and

(b) (b) at any time after 30 June 2011, $0.

"Project Legislation" is the Melbourne City Link Act1995."Project Securities" has the meaning given itin the City Link Concession Deed.

"Proprietary Documentation" is documentation whichClepco or the Company uses for the operation,maintenance or repair of the Exhibition StreetExtension in which Intellectual Property Rights arecapable of subsisting.

"PSA" has the meaning given it in the City LinkConcession Deed.

"PTC Access Conditions" mean the conditions to beobserved in exercising the right of access the grant ofwhich is to be procured by the State under clause 4.2,as outlined in the memorandum entitled "PTC AccessConditions" initialled by or on behalf of the parties onor before the date of this Deed.

"PTC Adjacent Works and Operations Requirements"means the conditions to be observed in the operation,maintenance and repair of that part of the ExhibitionStreet Extension, as outlined in the memorandum


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entitled "PTC Adjacent Works and OperationsConditions" initialled by or on behalf of the parties onor before the date of this Deed.

"PTC Land Access Area" means the land and air spaceover that part of the land contained in Certificate ofTitle Volume 2788 Folio 557466 in the immediatevicinity of the Exhibition Street Extension, access towhich is necessary in order for Clepco to perform itsobligations and exercise those of its rights under thisDeed and the Lease that will or may be performed orexercised after Delivery, but excluding the piers,foundations and abutments for the Exhibition StreetExtension, which form part of the ESEP Land.

"Public Transport Corporation" is the Public TransportCorporation established under the Transport Act 1983(Vic) as amended.

"Quarterly KPI Report" has the meaning given in section 4(a)(iii) of Part B of Schedule 7.

"Reference Financial Model" has the meaning given to it in the City Link Concession Deed.

"Reference Rate" means:

(a) subject to paragraphs (b) and (c), on a day therate (expressed as a percentage per annum)which is the bid rate shown at approximately10.15am on the "BBSY" reference rate page ofthe Reuters Monitor System in Melbourne onthat day (or, if that day is not a Business Day,the Business Day immediately preceding thatday) for Bills accepted by a bank having a tenorof 2 months;

(b) if on the relevant day or, if the relevant day isnot a Business Day, on the preceding BusinessDay in Melbourne the BBSY reference ratepage or such a rate is not published inMelbourne by 10.30am and

(i) the Reuters Monitor System incorporatesa page substantially similar to the BBSYreference rate page, the bid rate shown atapproximately 10.30am on that page inMelbourne on that day or Business Day,as applicable, for such Bills, or


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(ii) the Reuters Monitor System does notincorporate a page substantially similar tothe BBSY reference rate page, theaverage buying rate shown atapproximately 10.30am on either theBBSW reference rate page of the ReutersMonitor System in Melbourne on thatday or Business Day, as applicable, forsuch Bills or if that page and such a rateis not published in Melbourne by10.30am on that day or Business Day, asapplicable, and the Reuters MonitorSystem incorporates a page substantiallysimilar to the BBSW reference rate page,in that similar page for such Bills; or

(c) if neither paragraph (a) nor (b) applies, theaverage of the buying rate for such Bills quotedby no fewer than three Banks at approximately10.30am on the relevant day (or the precedingBusiness Day, as applicable) assuming thateach such Bill has a face value of $500,000.

"related body corporate", in relation to a body corporateor an Entity, means a body corporate or an Entity thatis a related body corporate under the Corporations Actas if a reference to a body corporate includes an Entityand a reference to shares and to issued share capitalincludes a reference to interests (within the meaningof the Corporations Act);xxxiii

"Relevant Changes made to the Toll Calculation Schedule" means changes made to the Toll Calculation Schedule pursuant to the WGT CityLink and ESEP Concession Amending Deedsto provide for a Fixed Escalation Period (as defined in the Toll Calculation Schedule) and the introduction of the High Productivity Freight Vehicles (as defined in the Toll Calculation Schedule) as a new class of vehicle for the purpose of the Toll Calculation Schedule.

"Relevant Circumstances" means the payment by Clepco to the State of:

(a) an amount under clause 2.6(d)(i) in respect of a Compensable Enhancement arising during the City Link Additional Concession Period; or


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(b) an amount under clause 7.6(b)(ii)(B) to the extent that it relates to additional revenue that Clepco derives or is projected to derive as a result of the relevant Variation.

"Relevant Circumstances Amount" means any amounts payable by Clepco to the State arising out of or in connection with the Relevant Circumstances.

"Relevant Circumstances Payment Date" means the date on which any Relevant Circumstance Amount is payable by Clepco to the State.

"Relevant Circumstances Tax Liability" has the meaning given to it in clause 11.1(f).

“Relevant Systems” has the meaning given to it in the City Link Concession Deed.

"Reputable Insurer" means an insurance company having the Required Rating.

"Request For Payment" means a request for paymentwithin the meaning of section 77(1)(a) or section77(1)(b) of the Project Legislation.xxxiv

"Request For Payment Cap" means, at any time, the sumof the Ongoing Costs Cap and the ProjectDevelopment Costs Cap at that time.

"Required Rating" means a credit rating of at least:

(a) A- by Standard & Poor’s Rating Services, a division of The McGraw Hill Companies, Inc. or S&P Global Ratings Australia Pty Ltd; or

(b) A3 by Moody’s Investor Services, Inc.(including in Australia through Moody’s Investors Service Pty Limited (ABN 61 003 399 657)) or any successor to its rating business.

"Revocation Period" means the period that begins on the date the State exercises its option under the CityLink Option Deed and ends at the end of the last day in which WGT CityLink and ESEP Concession Amending Deeds may be, or have been, revoked (either wholly or in part) by a House of Parliament in accordance with the Project Legislation.


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"Safe Location" means a safe and convenient place near the Exhibition Street Extension or a place approved by VicRoads.

"Security Trust Deed" has the meaning given it in theMaster Security Deed.

"Security Trustee" is, at any time, the person then acting astrustee of the trust established by the Security TrustDeed.

"Separation Notice" has the meaning given to it in the City Link Concession Deed.

"Service" is any service, including:

(a) water, electricity, gas, telephone, drainage,sewerage and communications; and

(b) connections for services of tramways, roads andrailways and other land transport infrastructureon, over, under or adjoining the ESEP Land.

"Sign" is a sign, advertisement or other form of visualdisplay (not including a traffic or directional sign).

"Spot Audit" means an audit of any part of:

(a) the ESEP Project;

(b) the operation, maintenance or repair of theExhibition Street Extension or any activitiesrelated thereto; or

(c) the operations of Clepco or the Operator,

relating to road safety, traffic management, the role ofemergency services, emergencies or any of them.xxxv

"State" is the Crown in right of the State of Victoria.

"State Notice of Intention to Terminate" has the meaning given to it in the City Link Concession Deed.

"Step-in Payment" is a payment which is required to bemade under sub-paragraph 4.7(b)(vi) or paragraph4.7(e) of the Master Security Deed.

"Streamlined Variation Proposal" has the meaning given in clause 7.6A(a).

"Subcontract (O&M – CityLink/WGT)" means a subcontract (other than an ESEP Service Agreement) under which the subcontractor provides operation,


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maintenance, repair and/or tolling goods or services (which may include the provision of licensed materials) in relation to the City Link Project, the ESEP Project and the WGT.

"Sunset Date" means the earlier of 4 December 2004 andsuch other date as may be nominated by the Stateunder paragraph 8.1(i).xxxvi

"Tax" and "Taxes" are all income, stamp, indirect(including goods and services) and other taxes, levies,imposts, deductions, charges, duties, compulsoryloans and withholding (including financial institutionsduty, debits tax or other taxes whether incurred by,payable by return or passed on to another person)together with interest thereon or penalties, if any, andcharges, fees or other amounts made on, or in respectthereof and "Taxation" shall be construedaccordingly.

"tax invoice" has the same meaning as it has in the GSTAct.xxxvii

"taxable supply" has the same meaning as it has in the GSTAct.xxxviii

“Third Party Software” has the meaning given it in the City Link Concession Deed.

“Thirty-seventh Amending Deed” has the meaning given it in the City Link Concession Deed.

"Toll Administration Fee" means a toll administration feewithin the meaning of section 71(1A) of the ProjectLegislation.xxxix

"Toll Calculation Schedule" is, at any time, Schedule 1, asamended consequent upon any change agreed ordetermined under clauses 2.9 and 2.10.

"Toll Road" is a road the passage of vehicles on which, orthe grant of (or agreement to grant) a right or authorityto use which for the passage of vehicles, attracts atoll.xl

"Tolling System" is, at any time, a system for imposing andcollecting tolls in relation to the ESEP Project whichis the same as the system which then constitutes theTolling System under the City Link ConcessionDeed.


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"Traffic Model" has the meaning given it in the City LinkConcession Deed.

"Tram Crossing Area" means that part of the ExhibitionStreet Extension identified by double cross hatchingon the plan of the Exhibition Street Extensionincluded in the Exhibit.xli

"Transaction Documents" are:

(a) prior to the OpCo Effective Date, theOperating and Maintenance Agreement and ;

(b) on and from the OpCo Effective Date, the Operating Services Agreement (CityLink); and

(c) the Agency Agreement.

"Transfer of Land Act" is the Transfer of Land Act 1958(Vic.).

"Transurban Developments" means the company established to develop toll roads as contemplated by the deed made by the State, the Company and the Trustee in or about October 2001 and entitled 'Melbourne City Link Fifteenth Amending Deed' and notified to the State by the Company;xliiTransition Services" means the operation, maintenance and repair activities undertaken in accordance with this Deed, other than:

(a) lifecycle maintenance;

(b) any other activities carried out for the purpose of achieving a design life requirement; and

(c) the Handover Services.

"Transition Services Fee" means the fee (if any) payable by the State to Clepco in accordance with clause 3.3AQ for carrying out the Transition Services.

"Transition Services Fee Entitlement Period" has the meaning given in clause 3.3AQ(d).

"Transurban Entity" means each of:has the meaning given it in the City Link Concession Deed.

"Transurban Group" means the group of entities that comprises, from time to time:

(a) Transurban Developments;International Limited (ACN 121 746 825), Transurban


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Holdings Limited and Transurban Holding Trust by its responsible entity Transurban Infrastructure Management Limited (ACN 098 147 678) but only while the securities of those entities remain stapled securities (together the Stapled Entities);

(b) Transurban Limited;

(c) Transurban Unit Trust;

(d) a related body corporate of one of the Entities referred to in paragraphs (a), (b) or (c) (other than the Company, the Trustee or Clepco);xliiib)

each company in which the Stapled Entities, whether individually or collectively, own (directly or indirectly) more than 50% of the voting shares or securities; and/or

(c) each company which is for the purposes of section 50AA of the Corporations Act under the "control" of the Stapled Entities, whether individually or collectively.

"Transurban Holdings Limited" means the company established to acquire shares in the Company and contemplated by the deed made by the State, the Company and the Trustee in or about October 2001 and entitled 'Melbourne City Link Fifteenth Amending Deed' and notified to the State by the Company;xlivhas the meaning given it in the City Link Concession Deed.

"Transurban Unit Trust" means the Trust established to acquire Units and contemplated by the deed made by the State, the Company and the Trustee in or about October 2001 and entitled 'Melbourne City Link Fifteenth Amending Deed' and notified to the State by the Company;xlvhas the meaning given it in the City Link Concession Deed.

"Triennial Emergency Exercise" means a substantialexercise which must be physically conducted on theExhibition Street Extension and which is designedto:

(a) simulate an emergency on or around theExhibition Street Extension;


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(b) simulate a response on the Exhibition StreetExtension to that emergency; and

(c) accurately and comprehensively test andvalidate the emergency, incident and responsepolicies, plans, systems, manuals andprocedures (including the Operation andMaintenance Manuals, Operations QualityPlan, Emergency Management Plan andIncident Management Quality Plan, andincluding those referred to or incorporated inthe Operation and Maintenance Manuals,Operations Quality Plan, EmergencyManagement Plan and Incident ManagementQuality Plan) which Clepco has in place.xlvii

"Trustee" means at any particular time, the person thenconstituting the Trustee for the purposes of the CityLink Concession Deed.

"Unit" has the meaning given to it in the City LinkConcession Deed.

"Utility" is, at any time, a person or entity who, at that time,is involved in the provision of infrastructure to thepublic or sections of the public, including persons orentities who, at that time, supply, sell or distribute gas,water or electricity and is permitted by or under Lawto do so.

"Utility Interruption" means electricity being unavailable to the Exhibition Street Extension as a result of a failure upstream of the point of electricity connection to an electricity supply network, provided that the electricity supply network is located in Australia or the Philippines.

"Variation" is any change:

(a) to the structure of, materials used in, orimprovements or equipment on, the ExhibitionStreet Extension (implemented or proposed tobe implemented after Delivery); and

(b) which does not and will not have a MaterialAdverse Effect.

"Variation Order" means a direction issued by the State under clause 7.6 which requires Clepco to proceed with a Variation.


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"Variation Principles" means the principles set out in Exhibit A.

"Variation Proposal" has the meaning given in clause 7.6(l).

"Variation Quote" means the quote prepared by Clepco in accordance with clause 7.6(f).

"Variation Reinstatement Criteria" means:

(a) the Exhibition Street Extension and any surrounding roads which were physically affected by the Variation are safe for use and achieve at least the same functionality as existed prior to the commencement of the Variation;

(b) any adverse effect upon the capacity or patronage of the Exhibition Street Extension is minimised; and

(c) to the extent reasonably practicable having regard to the other matters referred to in paragraphs (a) and (b) and the requirements of this Deed, the flexibility to carry out all or part of the Variation in the future is preserved.

"Variation Request" has the meaning given in clause 7.6(f).

"Variation Revocation" has the meaning given in clause 7.6(d)(ii).

"VicRoads" is the Roads Corporation of Victoriaestablished under the Transport Act 1983 (Vic) asamended.

"VicRoads Managed Motorways Framework" has the meaning given to it in the City Link Concession Deed.

"WGT" or "West Gate Tunnel" means the primary road connecting the West Gate Freeway with the Port of Melbourne, City Link and the central city, including the upgraded section of the West Gate Freewaybetween the M80 Interchange and Williamstown Road as more fully described in the WGT Project Agreement.

"WGT CityLink and ESEP Concession Amending Deeds" means each of:


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(a) the Thirty-seventh Amending Deed;

(b) the twenty-fifth amending deed to the IFA entered into between the State, the Company, the Trustee and Clepco; and

(c) the eighteenth amending deed to this Deed entered into between the State and Clepco.

"WGT Co" means Transurban WGT Co Pty Limited ABN 56 617 420 023.

"WGT Date for West Gate Tunnel Completion" has the meaning given to "Date for West Gate Tunnel Completion" in the WGT Project Agreement.

"WGT Date of Tolling Completion" has the meaning given to "Date of Tolling Completion" in the WGT Project Agreement.

“WGT Equity Subscription Deed” has the meaning given to that term in the City Link Concession Deed.

“WGT Expiry Date” has the meaning given to “Expiry Date” in the WGT Project Agreement.

"WGT Financial Close" has the meaning given to the term "Financial Close" in the WGT Project Agreement.

"WGT Handover" means the discharge by WGT Co of its obligations under clause 28 of the WGT Project Agreement.

"WGT Project" has the meaning given to "Project" in the WGT Project Agreement.

"WGT Project Agreement" means the deed entitled "West Gate Tunnel Project Agreement" as between the Stateand WGT Co dated on or about 11 December 2017.

"WGT Project Debt" has the meaning given to that term under the City Link Concession Deed.

"WGT Project Document" means each:

(a) Project Document (as defined under the WGT Project Agreement);

(b) each document amending a Project Document(as defined under the WGT Project Agreement); and


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(c) each document which is agreed between the parties to this Deed to be a WGT Project Document.

"WGT PSR" has the meaning given to “PSR” in the WGT Project Agreement.

"WGT Reserve Tranche" has the meaning given to it in the City Link Concession Deed.

"WGT State Security" has the meaning given to "State Security" in the WGT Project Agreement.

“WGT Subcontractor IPR” has the meaning given it in the City Link Concession Deed.

"WGT Tolling Enhancements" means the revenue derived from the Relevant Changes made to the Toll Calculation Schedule (over and above the revenue that would have been derived had no such amendment been made and assessed over the City Link Concession Period).

"WGT Works" has the meaning given to “Works” in the WGT Project Agreement.

“WGT/CityLink Interface Letter” has the meaning given to it in the City Link Concession Deed.

1.2 Interpretation

In this Deed, headings are for convenience only and do notaffect its interpretation. Except to the extent that the contextotherwise requires:

(a) references to any statute, regulation, by-law orguideline or to any provision of any statute,regulation, by-law or guideline include anymodification or re-enactment of, or any provisionsubstituted for, and (in the case of a statute) allstatutory and subordinate instruments issued under,such statute, regulation, by-law or guideline or suchprovision;

(b) words denoting the singular include the plural andvice versa;

(c) words denoting individuals include corporations,partnerships, joint ventures, unincorporatedorganisations or Government Agencies and vice versa;

(d) words denoting any gender include all genders;


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(e) references to appendices, Articles, clauses,sub-clauses, paragraphs, schedules or exhibits in thisDeed are references to appendices, Articles, clauses,sub-clauses, paragraphs, schedules and exhibits of andto this Deed;

(f) subject to paragraph (q), references to any documentor agreement (including this Deed but excluding theESEP Construction Contract) include references tosuch document or agreement as amended, novated,replaced or supplemented from time to time;

(g) references to any party or person include that party'sor person's successors or permitted assigns;

(h) "writing" and cognate expressions include all meansof reproducing words in a tangible and permanentlyvisible form;

(i) where any word or phrase is defined in this Deed, anyother part of speech or other grammatical form shallhave a corresponding meaning;

(j) (and to the extent used in this Deed) all accountingterms used in this Deed shall have the meaning givento those terms under, and all calculations anddeterminations as to financial matters shall be made inaccordance with, accounting principles and practicesgenerally accepted in Australia from time to time andconsistently applied;

(k) "financial year" means a period of 12 calendar monthsending on 30 June;

(l) "dollar" and "$" mean the lawful currency ofAustralia;

(m) "quarter" means a period of 3 calendar months endingon the last day of September, December, March orJune;

(n) the term "including" and "include" means "includingor include (as applicable) without limitation";

(o) the term "operation" includes "tolling" and cognateexpressions shall be similarly interpreted;

(p) the term "land" includes interests in land;

(q) references to the Lending Documents or any of them,are references to those documents or the relevantdocument in the form which they or it are deemed to


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take under paragraph 1.2(qa) of the City LinkConcession Deed;xlviii

(r) references to the Project Securities are references tothose Securities as if they were subject to the termsand conditions to which they are deemed to be subjectunder paragraph 1.2(r) of the City Link ConcessionDeed; and

(s) references to Commonwealth Law include a referenceto the Constitution of the Commonwealth.

1.3 Priority in Interpretation

(a) Subject to paragraph (b), if there is any inconsistencybetween a provision of this Deed and a provision ofanother ESEP Project Document, this Deed shallprevail.

(b) If there is any inconsistency between any provision of:

(i) any ESEP Project Document and the MasterSecurity Deed, the Master Security Deed shallprevail; or

(ii) IFA and this Deed, IFA shall prevail.

(c) Clepco acknowledges that it has reviewed the ESEPSpecification and is satisfied with it for the purposesof this Deed, but such acknowledgement shall notlimit or qualify the nature or extent of any obligation,warranty, risk or liability given, imposed upon oraccepted by the State under any ESEP ProjectDocument, nor shall it adversely affect the nature orextent of any right, remedy or power of Clepco.

(d) The State acknowledges that it has reviewed the ESEPO & M Requirements and is satisfied with them forthe purposes of this Deed, but such acknowledgementshall not limit or qualify the nature or extent of anyobligation, warranty, risk or liability given, imposedupon or accepted by Clepco under any ESEP ProjectDocument, nor shall it adversely affect the nature orextent of any right, remedy or power of the State.

(e) To the extent that carrying out the CTW Works orCTW Maintenance Activities in accordance with therequirements of the CTW Project Documents preventsClepco from complying with an obligation under thisDeed (other than a CTW Obligation) during thecarrying out of the CTW Works (Prevented


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Obligation), the State releases Clepco from thatobligation to the extent of such prevention, and for solong as Clepco is so prevented from complying, unlessthe parties agree otherwise.

(f) Clepco must:

(i) notify the State as soon as practicable uponbecoming aware of a Prevented Obligation; and

(ii) submit a mitigation plan to the State within 10Business Days of becoming aware of aPrevented Obligation which details how Clepcowill mitigate the effects of the PreventedObligation.

1.4 No Partnership or Joint Venture

Neither this Deed nor any other ESEP Project Documentcreates a partnership, joint venture or fiduciary relationship.

1.5 Delegate

(a) The State may appoint a person as a delegate toperform any of its functions, rights and powers underthis Deed. The State shall give Clepco notice of anydelegate so appointed, setting out the delegatedfunctions, rights and powers and including a copy ofthe relevant instrument of appointment.

(b) The State may revoke the appointment of a delegateand may appoint a substitute and shall give Clepconotice of each appointment and revocation, includinga copy of the relevant instrument of appointment orrevocation.

(c) The appointment of a delegate to perform some or allof the functions, rights and powers of the State underthis Deed will not limit or affect the State's obligationsor liability under this Deed.

1.6 Discontinuance of Bodies or Associations

(a) If an authority, institute or association or other bodyreferred to in this Deed is reconstituted, renamed orreplaced or if its powers or functions are transferred toanother entity, this Deed is deemed to refer to thatnew entity.


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(b) If an authority, institute or association or other bodyreferred to in this Deed ceases to exist, this Deed isdeemed to refer to that entity which servessubstantially the same purpose or object as the formerentity.

1.7 Waiver

Subject to the express provisions of this Deed, if a party orany other person fails or delays in exercising or enforcingany right or remedy under this Deed, it shall not preclude oramount to a waiver of any further exercise or enforcement ofthat right or remedy or of any other right or remedy underthis Deed or provided by Law.

1.8 Amendments

Any amendment to an ESEP Project Document shall only bemade in writing.

1.9 Surviving Provisions

(a) An indemnity given under this Deed survives thetermination of this Deed.

(b) Obligations of the parties under clauses 2.6(d),3.3,Handover Clauses, 7.5, 8.1(b), 9.6(b), 14.3(e),14.6(d), 15.3, 15.4, 17.1 and 19.3 shall survive thetermination of this Deed.xliviii

1.10 Governing Law

This Deed shall be governed by and construed in accordancewith the laws of Victoria and the parties submit to thenon-exclusive jurisdiction of the courts of Victoria.

1.11 Contra Proferentum

In the interpretation of this Deed, no rule of constructionapplies to the disadvantage of one party on the basis that itput forward this Deed or any part of it.

1.12 Diligent Pursuit

Any assessment or determination as to:

(a) whether a person has diligently pursued something oris diligently pursuing something;

(b) whether something has been diligently pursued or isbeing diligently pursued; or

(c) what could be achieved were something to bediligently pursued,


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shall be made in the context of the actual circumstancesprevailing at all relevant times but:

(d) any lack of financial or technical resources shall bedisregarded; and

(e) the standard of pursuit shall be not less than whatmight reasonably be expected of the State, havingregard to the resources (including technical resources)that the State might reasonably be expected to devote(or procure be devoted) were the State to have anobligation to achieve or implement that thing,promptly.

1.13 Amortisation Schedule and Payback Period

(a) References to the amortisation schedule set out inschedule 5 to IFA are references to the schedule forrepayment by the Company or the Trustee, as the casemay be, of the principal amount of Project Debt as setout in schedule 5 to IFA without regard to anyprovision for voluntary pre-payment or acceleration ofany obligation to make repayments and without regardto the effect of any actual obligation to makepayments or repayments under the LendingDocuments.xlixv

(b) The relevant "payback period" at any time, in respect of each of Project Debt, CTW Project Debt and WGT Project Debt, is the period commencing at that timeand ending on the first date when the principal amountof the Project Debt, CTW Project Debt or WGT Project Debt (as applicable) is, according to therelevant amortisation schedule set out in schedule 5schedules 5, 5A and 5B to IFA, zero.lxlvi

(c) References to "principal" or "principal amount" inparagraphs (a) and (b) include, in relation to any:

(i) bill of exchange, the face amount of the bill;

(ii) letter of credit, guarantee or indemnity, themaximum limit of liability under the letter ofcredit, guarantee or indemnity;

(iii) CPI linked bonds, the full amount payable onredemption of the bond.

(d) References to "repayment" or "prepayment" inparagraphs (a) and (b) include, in relation to any:


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(i) bill of exchange, the discharge of liability underthe bill or the provision of cash cover for theface amount of the bill to any personindemnified by the Company or the Trustee inrespect thereof under the Lending Documents;

(ii) letter of credit, guarantee or indemnity, thedischarge of or the reduction, expiry orcancellation of liability under the letter ofcredit, guarantee or indemnity or the provisionof cash cover for the maximum limit of liabilityto the person indemnified by the Company orthe Trustee in respect thereof under the LendingDocuments.

(e) References to the amortisation schedule set out in schedule 5A to IFA are references to the schedule for repayment by the Company or the Trustee, as the case may be, of the principal amount of CTW Project Debt as set out in schedule 5A to IFA without regard to any provision for voluntary prepayment or acceleration of any obligation to make repayments and without regard to the effect of any actual obligation to make payments or repayments under the Lending Documents.

(f) References to the amortisation schedules set out in schedule 5B to IFA are references to the schedule for repayment by the Company or the Trustee, as the case may be, of the principal amount of WGT Project Debt as set out in schedule 5B to IFA without regard to any provision for voluntary prepayment or acceleration of any obligation to make repayments and without regard to the effect of any actual obligation to make payments or repayments under the Lending Documents.

1.14 Cost of Performing Obligations

A party who has an obligation to do any thing under thisDeed shall perform that obligation at its cost, unless aprovision of this Deed expressly provides otherwise.

1.15 Early Termination

(a) Subject to paragraphs (b) and (c), if the EarlyTermination Amount becomes due for payment,payment of that amount shall be made:


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(i) to the Security Trustee, insofar as it reflects anamount equal to the ESEP Project Debt; and

(ii) subject to paragraph (i), to Clepco.

(b) The State shall be entitled to rely conclusively onnyany statements by Clepco as to how much of anEarly Termination Amount payable is reflective ofESEP Project Debt. Absent such a statement, theState shall be entitled to determine (at its discretion)how to divide an Early Termination Amount it isrequired to make amongst the persons referred to inparagraph (a).

(c) Clepco acknowledges that:

(i) with its consent the obligations of the Stateunder this Deed in relation to the EarlyTermination Amount and its payment will bedischarged by payment to the Security Trusteeunder paragraph (a)(i) and to the Company asits agent under paragraph (a)(ii); and

(ii) following such payment, the State shall notretain any liability whatsoever in relation tothose obligations.

1.16 Equity Return

Clauses 1.19 and 1.19A of the City Link Concession Deedshall apply in assessing at any particular time the EquityReturn, Extension Equity Return, the ability of Original Equity Investors to achieve an Equity Return or the ability ofExtension Equity Investors to achieve an Extension EquityReturn,li.xlvii, liixlviii

1.17 Tolls

For the purposes of the ESEP Project Documents:

(a) a toll is an amount levied for the use of something (ora part of that thing) or the grant of (or agreement togrant) a right or authority to use that thing (or a part ofit), for a particular purpose; and

(b) where the concept of "toll" is used with respect to orin relation to the ESEP Project or the ExhibitionStreet Extension, it means an amount levied for theuse of the Exhibition Street Extension or a part of it,or for the grant of (or agreement to grant) a right orauthority to use the Exhibition Street Extension or a


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part of it in a particular period, for the passage ofvehicles.liiixlix livl

1.18 Trusteelvi

(a) Each of the State and Clepco hereby agrees andacknowledges that the appointment on 30 June 2003of Transurban Infrastructure Management LimitedACN 098 147 678 ("replacement trustee") as Trusteeand responsible entity of the Trust in place ofPerpetual Trustee Company Limited ACN 000 001007 ("former trustee"):

(i) has had the effect, in accordance with (andsubject to) sections 601FS and 601FT of theCorporations Act that:

(A.) the rights, obligations and liabilities ofthe former trustee (as trustee andresponsible entity of the Trust) in relationto the Trust (including, withoutlimitation, rights, obligations andliabilities under the ESEP ProjectDocuments) have become the rights,obligations and liabilities of thereplacement trustee as Trustee andresponsible entity of the Trust; and

(B.) any document to which the former trustee(as Trustee and responsible entity of theTrust) was a party, in which a referencewas made to it, or under which it hadacquired or incurred a right, obligation orliability, or might have acquired orincurred a right, obligation or liability ifit had remained the responsible entity andTrustee of the Trust, has effect, if thedocument is capable of having effectafter the replacement, as if thereplacement trustee (and not the formertrustee) were a party to the document,were referred to in the document or hador might have acquired or incurred theright, obligation or liability under thedocument (in its capacity as Trustee andresponsible entity of the Trust); and

(ii) does not, in any way, other than as referred to inclause 1.18(a)(i) above, affect the operation of


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any of the ESEP Project Documents, nor therights, obligations or liabilities arising under theESEP Project Documents of any of the partiesto them (including, without limitation, under theguarantees given under the Master SecurityDeed and the ESEP Deed of Guarantee andIndemnity), and such documents will (subject toclause 1.18(a)(i) above) continue in full forceand effect in accordance with their terms.

(b) Each of the State and Clepco hereby agrees andacknowledges that any deregistration of the Trust (andthe Trustee's consequent ceasing to be a responsibleentity within the meaning of the Corporations Act),will not alter the operation or effect of the provisionsreferred to in clause 1.18(a)(i) above and:

(i) without limiting any rights, obligations orliabilities under the ESEP Project Documents,the replacement trustee will continue, for solong as it is Trustee of the Trust, to have and bebound by the rights, obligations and liabilitiesof the Trustee arising under the ESEP ProjectDocuments;

(ii) notwithstanding clause 6.3 of the Deed forManaged Investments Act dated 21 March 2001between the Company, the Trustee and theparties listed in Schedule 1 to that deed, eachESEP Project Document will be interpreted asif any reference to the former trustee, City LinkManagement Limited (in its capacity asmanager of the Trust) or TransurbanInfrastructure Management Limited ACN 098147 678 as responsible entity of the Trust, willbe read as if it were a reference to the Trustee.

1.19 Provisions for the benefit of the parties

(a) The provisions contained in this Deed are for thebenefit of the parties only and may not be relied on byany person in any prosecution for an offence contraryto section 73(1) of the Project Legislation.

(b) Without limitation, any failure by Clepco to send aRequest For Payment or to request the EnforcementAgency to send a Request For Payment in accordancewith clause 9.2A(c)(i) or (ii) does not invalidate or in


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any way affect the validity of any infringement noticeserved or proceeding commenced in accordance withsection 77 of the Project Legislation.lvii

1.20 Reference to invoice

Any reference to "invoice" that may exist in the ProjectLegislation is deemed to be a reference to "Request ForPayment" or "Further Request For Payment" (as the casemay be) for the purposes of this Deed.lviii

1.21 Not Used

1.22 Not Used

1.23 Reference Financial Model and Financial Model

Where the parties are required to use the Reference Financial Model, Financial Model or Forecast Enhancement Cashflows, that model or worksheet will be the Reference Financial Model, Financial Model or Forecast Enhancement Cashflows (as applicable) agreed or determined in accordance with the CityLink Option Deed as updated in accordance with clause 1.26 and to reflect each Model Variation Event that has occurred prior to the date that the parties are required to use the Reference Financial Model, Financial Model or Forecast Enhancement Cashflows (as applicable).

1.24 Force Majeure Events

(a) For the purposes of determining the redress to be afforded under clause 2.10 in respect of an Appendix Event described in Item 8 or 9 of the Appendix that occurs prior to the WGT Date of Tolling Completion and which it is agreed or determined will have, or has had, a Material Adverse Effect, without limiting the rights or obligations of the parties in respect of any other Appendix Event or such an Appendix Event occurring at any other time, the State shall be required to restore the ability of the Extension Equity Investors to achieve an Extension Equity Return only on issued Extension Project Securities (as determined in accordance with clause 1.27(b) of the City Link Concession Deed) as at the time of the Appendix Event.

(b) Where clause 1.24 (a) applies, the parties must negotiate in good faith to agree alternative sources of funding to be made available to the Company, Clepco and the Trustee so as to enable the Extension Equity


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Investors to achieve the Extension Equity Return on those amounts which are remaining to be paid by the Company, Clepco and the Trustee as referred to in clauses 1.27(b)(i) and (ii) of the City Link Concession Deed as at the time of the Appendix Event (Committed Extension Equity).

(c) If the parties are unable to agree alternative sources of funding under clause 1.24(b) within 20 Business Days of the agreement or determination that the Appendix Event has had or will have a Material Adverse Effect, the parties will negotiate in good faith to agree:

(i) reductions in the Committed Extension Equity so as to enable the Extension Equity Investors to achieve the Extension Equity Return on the Committed Extension Equity having regard to the impact of the Appendix Event on projected costs and revenue; and

(ii) alternative funding sources and mechanisms that the State may be able to make available to fund construction of WGT in place of the amounts that will no longer be funded by Extension Equity Investors as a result of the application of clause 1.24(c)(i).

(d) If the parties cannot agree on the reduced Committed Extension Equity or alternative funding sources and mechanisms under clause 1.24 (c) within a further 20 Business Days of commencing negotiations, the parties acknowledge that WGT Co will be entitled to terminate the WGT Project Agreement by notice to the State in accordance with clause 42.2(e) of the WGT Project Agreement.

(e) For the avoidance of doubt, no party is required to agree any particular outcome under clause 1.24 (b) or (c), and each party may elect not to agree any particular outcome at its discretion, subject only to the obligation to negotiate in good faith with the other parties.

(f) For the purposes of determining the redress to be afforded under clause 2.10 in respect of an Appendix Event (other than an Appendix Event described in Item 8 or 9 of the Appendix) that occurs prior to the WGT Date of Tolling Completion and which it is agreed or determined will have, or has had, a Material Adverse Effect, without limiting the rights or


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obligations of the parties in respect of any other Appendix Event or such an Appendix Event occurring at any other time, the State shall be required to restore the ability of the Extension Equity Investors to achieve an Extension Equity Return on the aggregate of:

(i) issued Extension Project Securities (as determined in accordance with clause 1.27(b) of the City Link Concession Deed) as at the time of the Appendix Event; and

(ii) Committed Extension Equity.

1.25 Appendix Event prior to Date of Parliamentary Support (CityLink)

(a) Any party may provide notice to the other parties if it considers that during the period between WGT Financial Close and the Date of Parliamentary Support (CityLink):

(i) there has been an event, circumstance or Appendix Event which:

(A) has, prior to the date of such notice, given rise to any Compensation by the State to Clepco, or by Clepco to the State;

(B) would have given rise to Compensation if the WGT CityLink and ESEP Concession Amending Deeds and amendments to the Financial Model as a result of WGT had taken effect on WGT Financial Close (including having regard to clause 1.33 of the City Link Concession Deed); or

(C) is, at the date of such notice, the subject of good faith negotiation between the parties or is the subject of expert determination under Article 16, which would give rise to an adjustment to the Compensation if the WGT CityLink and ESEP Concession Amending Deeds and amendments to the Financial Model as a result of WGT had taken effect on WGT Financial Close; or

(ii) [not used],


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(including any Compensation in relation to an Appendix Event which has or is likely to have a Material Adverse Effect).

(b) On receipt of a notice under clause 1.25 (a), the parties must negotiate in good faith to agree the Compensation that would have arisen if the WGT CityLink and ESEP Concession Amending Deeds (including the proposed amendments to the ESEP Project Documents) and amendments to the Financial Model as a result of WGT had taken effect on WGT Financial Close (including having regard to clause 1.33 of the City Link Concession Deed), and in the case of clause 1.25 (a)(i)(C) having regard to the fact that whether or not Compensation is payable remains the subject of negotiation or determination. The Compensation must have regard to any Compensation (or other compensation payable to WGT Co) that arose in relation to the relevant event or circumstance prior to the Date of Parliamentary Support (CityLink) so that there is no double recovery.

(c) If the parties cannot agree on the Compensation under clause 1.25 (b) within 20 Business Days of commencing negotiations or such longer period as agreed by the parties, either party may refer the matter for expert determination in accordance with Article 16.

(d) The parties agree, and any third person appointed under Article 16 shall be required to accept, that the Compensation may only comprise forms of Compensation that are permitted under this Deed in relation to the relevant event or circumstance.

(e) If the Compensation is agreed or determined, that Compensation must be paid and implemented (as applicable) in accordance with that agreement or determination.

1.26 Adjustment Events

(a) Subject to clause 1.26(b), to the extent that there has been an Adjustment Event prior to the Date of Parliamentary Support (CityLink) and the parties have not been able to reach agreement in relation to the revisions to the WGT CityLink and ESEP Concession Amending Deeds and/or the Financial Model in accordance with clause 5.4 of the CityLink Option


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Deed, the parties agree that this Deed will be amended in accordance with Part A of Schedule 8 to the City Link Concession Deed.

(b) To the extent that any of the following events have occurred between WGT Financial Close and the Date of Parliamentary Support (CityLink):

(i) Model Variation Events, including any redress or compensation received by any party in respect of such event(s);

(ii) Progressive State Contributions being made to WGT Co from 1 July 2019 and Clepco not being entitled to WGT Tolling Enhancements prior to the Date of Parliamentary Support (CityLink);

(iii) distributions having been made by the Company to Original Equity Investors prior to the Date of Parliamentary Support (CityLink) which were projected to have been retained by the Company and paid to WGT Co under the CEPA if the Revocation Period had expired on or around WGT Financial Close;

(iv) WGT Reserve Tranche being used to provide payments from the Company and Clepco to WGT Co on or after the Date of Parliamentary Support (CityLink) which were otherwise projected to be have been funded by cash retained by Clepco if the Revocation Period had expired on or around WGT Financial Close;

(v) any decrease to the total value of the CLUT Works as projected in the Agreed CityLink Financial Model as at WGT Financial Close; or

(vi) any changes to the Financial Model between WGT Financial Close and the Date of Parliamentary Support (CityLink),

and the parties are unable to agree updates to the Financial Model in accordance with clause 5.3 or 5.4 of the CityLink Option Deed, the parties agree that the Reference Financial Model and Financial Model will be amended in accordance with Part B of Schedule 8 to the City Link Concession Deed.

(c) To the extent that an event described in paragraph (b) or (c) of the definition of ‘Adjustment Event’ (as


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defined under the City Link Concession Deed) occurs on or after the Date of Parliamentary Support (CityLink), the parties agree that this Deed and/or the Financial Model will be amended in accordance with Part A of Schedule 8 to the City Link Concession Deed.

2. THE PROJECT

2.1 Objectives

(a) The State intends that:

(i) the Exhibition Street Extension shall be anintegrated part of Melbourne's road system;

(ii) road and infrastructure programs beimplemented on a competitive basis;

(iii) the movement of traffic around and to theCentral Activities District, rather than throughit, be generally facilitated;

(iv) access to the Central Activities District, to newState initiatives including Southbank, theCasino, the Exhibition Centre and theDocklands Area and to major sporting andentertainment venues including the MelbourneCricket Ground, the Arts Centre, the TennisCentre and Olympic Park, be improved;

(v) aesthetically pleasing and architecturallysignificant structures and treatments whichenhance the city of Melbourne be developed;

(vi) greater competitiveness in Victorian industry bepromoted;

(vii) economic benefits be optimised and financialcosts be minimised;

(viii) the environment around the Yarra River, theBotanical Gardens, the Kings Domain andadjacent sporting and entertainment precinctsbe improved; and

(ix) adverse environmental and social impacts alongthe Exhibition Street Extension and its feederroads be minimised.

(b) Clepco intends that it assist the Company and theTrustee to ensure that:


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(i) Project Debt, CTW Project Debt, WGT Project Debt and other debt the liability for which wasincurred solely for the purposes of the Project isrepaid in accordance with the LendingDocuments; and

(ii) Equity Investors derive at least the Base CaseEquity Return.lviii in relation to the Original Project Securities; andliv

(iii) Extension Equity Investors derive at least the Extension Base Case Equity Return in relation to the Extension Project Securities.

2.2 Intentions of the Parties

The parties' intentions are to implement the ESEP Project byentering into, and performing their respective obligationsunder, the ESEP Project Documents which have beenprepared and negotiated on the premises that:

(a) the ESEP Project is being undertaken by the privatesector to deliver significant benefits to the communityin terms of positive economic, social andenvironmental outcomes; and

(b) private finance is to be used for the ESEP Project.

2.3 Obligations of Clepco

Clepco shall:

(a) operate, maintain and repair the Exhibition StreetExtension; and

(b) grant a licence to the State in respect of theProprietary Documentation,

in accordance with this Deed.

2.4 Metropolitan Roads and Transport Policies

(a) (i) The State acknowledges that the ExhibitionStreet Extension is intended to be part of theroad network for the movement of traffic to andaround Melbourne and accordingly the Stateshall afford support to the Exhibition StreetExtension equivalent to the support the Stateaffords to Principal Traffic Routes by:

(A) managing the Freeways and PrincipalTraffic Routes as they exist from time to


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time which are reasonably required foraccess to or from the Exhibition StreetExtension having regard to the status ofthe Exhibition Street Extension as a partof the road network for the movement oftraffic to and around Melbourne and to alevel comparable to that afforded toPrincipal Traffic Routes;

(B) diligently pursuing maintaining(including incident management andobstruction removal), restoring andrepairing the Freeways and PrincipalTraffic Routes which are reasonablyrequired for access to or from theExhibition Street Extension, and ifupgrading such a Freeway or PrincipalTraffic Route, diligently pursuing thatupgrading, in a manner and to a levelsimilar to that afforded to PrincipalTraffic Routes;

(C) procuring that there shall be nointerference with the flow of traffic onFreeways and Principal Traffic Routesreasonably required for access to or fromthe Exhibition Street Extension due to:

(1) damage to, or a failure diligently topursue the repair of damage to,such Freeways and PrincipalTraffic Routes caused by the Stateor a Victorian Government Agency(noting that relief may be availablefor "off project force majeure"under item 9(b) of the Appendix);or

(2) the failure of a Utility to diligentlypursue its activities, and for thepurposes of this provision "Utility"shall be limited to a Utility whichwas within the ownership andcontrol of the State as at 1 August1997;

(D) bearing the risk of riots, blockades orother forms of civil commotion or unreston the Exhibition Street Extension or on


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Freeways and Principal Traffic Routesreasonably required for access to or fromthe Exhibition Street Extension where itcan be reasonably demonstrated by or onbehalf of Clepco that:

(1) it results from an act by the Stateor a Victorian Government Agency(other than a municipal governingbody) directly in relation to theESEP Project; or

(2) it results from or forms part of anorganised campaign in oppositionto the implementation of the ESEPProject or a part of it or theimplementation of other Stateprojects or policies,; or

(DA) procuring that there shall be no removal of or closure of a lane on any Freeway or Principal Traffic Route reasonably required for access to or from the Exhibition Street Extension, other than where that removal or closure is temporarily required due to or part of:

(1) any maintenance (including incident management and obstruction removal), repair or upgrading of the Freeway or Principal Traffic Route; or

(2) any other development, project or works procured by the State or any Government Agency,

but the State shall not be considered to havefailed to provide the support required under thisparagraph (a)(i):

(E) because of a failure to undertake newroad works, unless that failure eitherreflects a failure to observe therequirements of sub-paragraph (a)(i)(B)or would discriminate against theExhibition Street Extension relative toPrincipal Traffic Routes;

(F) because of an act done in the course ofday to day activities of the State or


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Victorian Government Agencies in themanagement of the transport network,being activities which are diligentlypursued and consistently appliedthroughout equivalent aspects of thetransport network (which, in respect of any removal or closure of a lane on a Freeway or Principal Traffic Route reasonably required for access to or from the Exhibition Street Extension must only be of a kind permitted under subparagraph (a)(i)(DA)); or

(G) if the circumstances otherwise reflectiveof the failure are due to Clepco, or aContractor acting in breach of the ESEPProject Documents.

(ii) If the State fails to provide the support requiredof it under sub-paragraph (a)(i) (which shouldbe deemed to be the case if a risk which it bearsunder that sub-paragraph crystallises) it shallhave no liability for that failure and that failureshall not be considered to constitute a breach ofthis Deed but, notwithstanding the foregoing,the failure shall be treated as an event underitem 3 of the Appendix.

(iii) In this paragraph 2.4(a):

(A) "Freeways" mean the Eastern freeway,the West Gate freeway, the Tullamarinefreeway, the South Eastern freeway andthe Calder freeway and Western RingRoad, (except insofar as they comprisepart of the City Link), or such otherfreeways agreed by the parties from timeto time;

(B) "Principal Traffic Routes" mean BullaRoad, Bell Street, Pascoe Vale Road,Moreland Road, Toorak Road,Brunswick Road, Mt Alexander Road,Flemington Road, Racecourse Road,Dynon Road, Footscray Road, KingsWay, Power Street and Punt Road andthe route comprising Barkly Street,Twickenham Crescent, Loyola Grove,MacRobertson Bridge, Grange Road and


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Madden Street or such other PrincipalTraffic Routes agreed by the parties fromtime to time.

(iv) In this paragraph 2.4(a), on and from the WGT Expiry Date or during the period in which the State enforces its rights under the WGT State Security and assumes effective control of WGT Co, the West Gate Tunnel will be deemed to be a Freeway.

(b) Clepco acknowledges that this Deed shall not restrictany right or power of the State or any VictorianGovernment Agency to manage or changeMelbourne's transport network (including road andpublic transport networks) other than the ExhibitionStreet Extension. Accordingly, for example, the Stateand each Victorian Government Agency will beentitled on its own account and to authorise others toexercise any right or power it would otherwise havehad to:

(i) construct new Toll Roads, freeways and otherroads;

(ii) connect new or existing Toll Roads, freewaysand other roads to the Exhibition StreetExtension;

(iii) extend or alter existing freeways and otherroads;

(iv) extend, alter or upgrade existing publictransport routes or services;

(v) construct new public transport routes orestablish new transport services;

(vi) develop the transport network generally;

(vii) implement the following road policies of theState:

(A) Linking Melbourne (1994);

(B) Travel Demand Management Initiatives(1994);

(C) Freight Initiatives (1994); and

(D) Transporting Melbourne (1996); and

(viii) from time to time vary or substitute otherpolicies for the policies referred to in


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sub-paragraph (vii) and implement the policiesas varied or the substituted policies.

(c) As indicated in paragraph (b), the State's right andpower to manage and change Melbourne's transportnetwork does not include a right or power to manageor change the Exhibition Street Extension. It isacknowledged, however, that the exercise of this rightand power of the State may make it necessary ordesirable to make, after Delivery, consequentialchanges to the Exhibition Street Extension or a part ofthe Exhibition Street Extension in order to enable orfacilitate the proper or efficient integration of theExhibition Street Extension with Melbourne'stransport network (including road and public transportnetwork).

(d) The State shall give Clepco reasonable notice of any:

(i) proposal to connect a new Toll Road, freewayor other road directly to the Exhibition StreetExtension; or

(ii) change to the Exhibition Street Extension or, apart of the Exhibition Street Extension, whichthe State considers in good faith is aconsequential change to which paragraph (c)applies.

(e) If the State gives a notice of a proposal or changeunder paragraph (d) to be effected or implementedafter Delivery:

(i) the State shall co-operate with, ensure thatrelevant Victorian Government Agencies, anduse best endeavours to ensure that relevantmunicipal governing bodies, co-operate withClepco to ensure that any consequent disruptionof the ability of Clepco to observe itsmaintenance and operation obligations underthis Deed is kept to a minimum, having regardto the circumstances;

(ii) Clepco shall co-operate with the State andrelevant Government Agencies by givingreasonable access to ESEP Land to them andtheir nominees and otherwise permitting theconnection or change (as applicable) to bemade;


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(iii) as between Clepco and the State, the State shallbear the cost of the works necessary to effectthe connection or implement the change, asapplicable, whether on or adjoining ESEPLand; and

(iv) the State shall indemnify Clepco against:

(A) losses in tolling revenue (after excludingany GST that would have been payableby Clepco in respect of such revenue)incurred because the connection orchange results in untolled use of theExhibition Street Extension;lixlv

(B) reasonable expenditure incurred byClepco in order to reduce the level ofactual or likely untolled use that has orwould result from such connection orchange; and

(C) (if Clepco does not undertake the worksnecessary to effect the connection orimplement the change) claims, demandsand reasonable costs and expenses madeagainst or incurred or payable by Clepcoas a result of those works causingstructural failures in the Exhibition StreetExtension.

2.5 Existing Traffic Environment[Not used]

(a) The State may at its discretion at any time alter any part of the Existing Traffic Environment.

(b) Notwithstanding clause 2.11(c), if:

(i) an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix occurs;

(ii) the net present value amount which is determined under paragraph (e) and deemed for the purposes of this Deed to reflect the effect of the Appendix Event is negative; and

(iii) that Appendix Event occurs in the period from the date of this Deed to the tenth anniversary of Delivery,

then State financial contribution shall be considered as a measure of first resort and shall be adopted in


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preference to the other methods of redress available, unless it cannot reasonably achieve the relevant outcome prescribed for that Appendix Event in column 4 of the Appendix.

(c) If:

(i) an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix occurs;

(ii) the net present value amount which is determined under paragraph (e) and deemed for the purposes of this Deed to reflect the effect of the Appendix Event is negative; and

(iii) that Appendix Event occurs in the period after the tenth anniversary of Delivery,

then:

(iv) if the State has consulted in good faith with Clepco concerning the proposal that the relevant part of the Existing Traffic Environment be altered, State financial contribution shall, in accordance with clause 2.11(c), be considered as the last method of redress to be used so as to achieve the relevant outcome prescribed for that Appendix Event in column 4 of the Appendix; or

(v) if the State has not so consulted with Clepco concerning that proposal, notwithstanding clause 2.11(c), State financial contribution shall be considered as a measure of first resort and shall be adopted in preference to the other methods of redress available, unless it cannot reasonably achieve the relevant outcome prescribed for that Appendix Event in column 4 of the Appendix.

(d) In accordance with paragraph 2.12(c), in the context of an Appendix Event of the type specified in paragraph 3(a) of Column 1 of the Appendix, it is agreed that:

(i) only for the purpose of determining the issue of whether the Appendix Event has had or will have a Material Adverse Effect, the effect of that event is to be determined net of any identifiable and measurable improvement on the


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level or timing referred to in the definition of Material Adverse Effect. This determination will not affect the level of redress agreed or determined under sub paragraph (ii); and

(ii) the level of redress to be provided by the method of redress agreed or determined to be appropriate is to be net of any identifiable and measurable improvement on:

(A) the ability of the Company and the Trustee to repay Project Debt; or

(B) the ability of Equity Investors to achieve a higher Equity Return,

which has resulted from traffic management measures implemented by or on behalf of the State contemporaneously with the Appendix Event, or in mitigation of the effects of the abovementioned Appendix Event or which has or will result from any payments in respect of the Appendix Event under the indemnity provided for in clause 2.4(e)(iv). The provisions of clause 2.12(b) which provide for netting of Government Directed Benefits shall not apply to Appendix Events of the type specified in paragraph 3(a) of column 1 of the Appendix.

(e) Subject to paragraphs (d) and (k), the effects of an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix shall be determined in three stages. The first stage involves using the methods specified in paragraph 2.12(d) of the City Link Concession Deed (involving a comparison, basically, of two financial models, one of which has been amended to reflect the consequences of the relevant event), so as to arrive at a net present value of the effect of the Appendix Event on net revenue (after excluding any GST that would have been payable by the Company, the Trustee or Clepco (as applicable) in respect of such net revenue) of the combined ESEP Project and City Link Project (the "Gross NPV Amount"). The second stage also involves using the method specified in paragraph 2.12(d) of the City Link Concession Deed, but as if references in that paragraph to the Base Case Financial Model were references to the Adjusted Base Case Financial Model


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and references to the Financial Model were references to the Adjusted Financial Model (each as defined in paragraph (g)). The object of this second stage is to arrive at a net present value of the effect of the Appendix Event on net revenue (after excluding any GST that would have been payable by the Company or the Trustee in respect of such net revenue) of the City Link Project, assuming no Exhibition Street Extension and no CLEP (the "Net NPV Amount"). The third stage involves subtracting the Net NPV Amount from the Gross NPV Amount, so as to arrive at a net present value amount which is deemed for the purposes of this Deed to reflect the effect of the relevant Appendix Event. In calculating net present values in this paragraph, the discount rate will be the rate determined in accordance with paragraph 2.5(b) of the Concession Deed, and the date of calculation will be the date of the relevant alteration to which paragraph 2.5(a) applies.lx lxi

(f) Net present value amounts referred to in paragraph (e) may be positive (if the effect of the event on net revenue (after excluding any GST that would have been payable in respect of such net revenue) is beneficial) or negative (if the effect of the event on net revenue (after excluding any GST that would have been payable in respect of such net revenue) is negative). lxii

(g) For the purposes of paragraph (e), the term:

(i) "Adjusted Base Case Financial Model"means the Base Case Financial Model, in the form it was in prior to its having been amended in the manner contemplated in IFA; and

(ii) "Adjusted Financial Model" means, at any time, the Financial Model but adjusted as if the Exhibition Street Extension and CLEP did not exist.

(h) If:

(i) the net present value amount which is deemed for the purposes of this Deed to reflect the effect of an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix is positive; and


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(ii) the State has notified Clepco of the Appendix Event within 12 months of its occurrence,

the State and Clepco shall consult in good faith in an endeavour to agree on the amount of the deemed beneficial effect on net revenue (after excluding any GST that would have been payable in respect of such net revenue) (taking into account additional expenses likely to be incurred in deriving that net revenue) attributable to the financial year in which the notice was given and each financial year thereafter during the Concession Period.lxiii

(i) If no agreement is reached between the State and Clepco under paragraph (h) as to the amount attributable to any particular financial year within 20 Business Days of the State requesting that Clepco consult on the matter, either party may refer the matter for expert determination under Article 16.

(j) An amount so agreed or determined to be attributable to a financial year shall be paid in cash by Clepco to the State on the payment date relevant to the financial year (by way of additional consideration for the grant of the concession rights under clause 2.8). The parties acknowledge that paragraphs 2.6(d)(ii), 2.6(d)(iii) and 2.6(e) apply to payments required to be so made, as if those paragraphs were set out in this clause 2.5.

(k) If:

(i) any part of the Existing Traffic Environment is altered;

(ii) notice in respect of the alteration was given by Clepco under clause 2.9 or by the State under clause 2.5(h);

(iii) the Existing Traffic Environment is again altered;

(iv) notice in respect of that subsequent alteration is given by Clepco under clause 2.9 or by the State under clause 2.5(h),

then in determining the effect of the Appendix Event constituted by that subsequent alteration under clause 2.5(e), the relevant models shall be amended to take into account the future effect of the redress for Clepco or the future payments to be made by Clepco, as


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applicable, agreed or determined to apply in relation to that earlier alteration.

(l) (i) Subject to sub paragraph (ii), the Existing Traffic Environment means the number and configuration of traffic lanes and the location and operation of parking bays applicable to:

(A) Exhibition Street between Flinders Street and the south side of the Lonsdale Street intersection; and

(B) Flinders Street between Wellington Parade South and the east side of the Queen Street intersection,

described in the functional layout plan initialled by or on behalf of Clepco and the State on or before the date of this Deed.

(ii) For the purposes of this Deed, the Existing Traffic Environment includes the following matters agreed between the parties which may not be described in the functional layout plan referred to in sub paragraph (i):

(A) modifications to the intersection of Flinders Street and Exhibition Street as noted in the ESEP Specification;

(B) alteration of the intersection of Flinders Street and Russell Street with the extension of Russell Street behind Federation Square to become a full four way intersection. There may be pedestrian movements across each leg;

(C) alteration of the intersection of Flinders Street and Swanston Street to provide for a wider tram safety zone westbound in Flinders Street;

(D) line marking the westbound carriageway in Flinders Street as three traffic lanes between Russell Street and Swanston Street;

(E) shifting the existing curb line on the south side of Flinders Street between Russell Street and Swanston Street to widen the roadway by up to 1·6 metres;


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(F) the eastbound Flinders Street approach to Exhibition Street having a continuous right turn lane from Russell Street;

(G) widening of the south side of Flinders Street between Wellington Parade South and Exhibition Street to provide an exclusive left turn lane from Flinders Street into the Exhibition Street Extension;

(H) no curb side parking on the east side of Exhibition Street between Flinders Lane and Flinders Street;

(I) changes to parking strategies consequent on the above matters; and

(J) tram priority calls to a limit of four per hour at the intersection of Flinders Street and the Exhibition Street Extension.

(iii) For the avoidance of doubt, the State has a discretion whether or not it will implement any or all of the matters outlined in sub paragraph (ii). Whether or not it does so will not be an alteration to which paragraph 2.5(a) applies.

(iv) The parties agree that if Delivery has occurred, the road connection between the intersection of Batman Avenue and Swan Street and the Central Activities District will be provided by the Exhibition Street Extension. The State will then promptly procure that Batman Avenue west of the Exhibition Street Extension will be closed to through traffic (other than for vehicles servicing the Federation Square and parkland precinct).

2.6 Enhancements

(a) The State may notify Clepco of a compensable enhancement (as described in paragraph (f))Compensable Enhancement provided that thenotice is given within 12 months of the occurrence ofthe cCompensable eEnhancement. If it does, the Stateand Clepco shall then consult in good faith in anendeavour to agree on the amount of the additionalrevenue (after excluding any GST that has been paid,or would have been payable, by Clepco in respect of


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such additional revenue) (net of additional expenseslikely to be incurred in deriving that additionalrevenue) derived and likely to be derived by reason ofthe cCompensable eEnhancement in the financial yearin which the notice was given and each financial yearthereafter during the Concession Period.lxviv

(b) If no agreement is reached between the State andClepco as to an amount under paragraph (a) within 20Business Days of the State requesting that Clepcoconsult on the matter, either party may refer the matterfor expert determination under Article 16.

(c) Subject to paragraph (d), 50% of any amount soagreed or determined as to an amount under paragraph(a), shall be deemed to be additional consideration forthe grant of the concession rights under clause 2.8.

(d) (i) For each financial year, 50% of any amount soagreed or determined as to an amount underparagraph (a), shall be paid in cash by Clepcoto the State on the payment date relevant to thatfinancial year. The obligation to makepayments in respect of an amount underparagraph (a) is, however, subject to paragraph(g).

(ii) If this Deed terminates other than by reason ofthe affluxion of time, a proportion only of theamount applicable to the financial year in whichthis Deed terminates need be paid on thepayment date relevant to that financial year,equivalent to the proportion of that financialyear that has expired prior to termination.

(iii) Subject to paragraph (e), the payment daterelevant to a financial year is:

(A) subject to sub-paragraph (B), the later of:

(1) the date being the 20th BusinessDay after the end of the financialyear; and

(2) if on that date Clepco was not in aposition to make the requiredpayment and satisfy all ExhibitionStreet Extension operating costsand expenses then due and payableby it, the first date thereafter onwhich Clepco is able to satisfy all


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Exhibition Street Extensionoperating costs and expenses thendue and payable by it; or

(B) if the financial year concerned is the onein which this Deed terminates, the datebeing the 20th Business Day after thedate of termination.

(e) The State acknowledges that in determining the duedate for payments to it, including the due date forpayments under this clause, regard needs to be had toclause 1.9 of the Master Security Deed.

(f) For the purposes of this clause 2.6 a "compensable enhancementA "Compensable Enhancement" is acircumstance or event that occurs or takes place afterthe date of this Deed, which relates to the roadtransportation network and which is a consequence ofthe exercise by the State of any right or power of thetype referred to in paragraph 2.4(b) (includingconnections to the Exhibition Street Extension towhich sub-paragraph 2.4(d)(i) applies), but it does notinclude:

(i) a Government Directed Benefit;

(ii) a circumstance or event insofar as it reflects theState affording support to the Exhibition StreetExtension under paragraph 2.4(a); or

(iii) an Appendix Event of the type specified in paragraph 3(a) of Column 1 of the Appendix, the effect of which is reflected in a positive net present value amount determined in accordance with clause 2.5.a Variation; or

(iv) the Assumed Transport Network Enhancements.

For the purpose of clarification, a cCompensableeEnhancement does not include actual or projectedgrowth in road transportation network usage otherthan growth in traffic generated or attracted by therelevant circumstance or event.

(g) If a circumstance or event which constitutes acCompensable eEnhancement ceases to subsistpayments required to be made to the State under thisclause 2.6 because of the cCompensableeEnhancement:


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(i) in respect of the financial year in which thatcircumstance or those consequences cease tosubsist, shall be reduced to a proportioncorresponding to the proportion of the financialyear remaining after that cessation; and

(ii) subject to sub-paragraph (i), need no longer bemade.

2.7 Conditions Precedent

It is a condition precedent to the coming into operation ofthis Deed that Parts B and C and clause 18 of IFA takeeffect. If IFA terminates, this Deed terminates.

2.8 Grant of Concession

Subject to clause 12.3, the State grants to Clepco the rightto:

(a) operate;

(b) impose and collect a toll for the passage of Vehicles(within the meaning of the Toll Calculation Schedule)in relation to; andlxvii

(c) maintain and repair,

the Exhibition Street Extension, and raise revenue in themanner approved by the State under clause 9.4(c), until theend of the Concession Period, subject to and upon the termsof this Deed.lxviii

2.9 Material Adverse Effect

(a) Each Appendix Event is capable of having a MaterialAdverse Effect. The parties acknowledge, however,that notwithstanding anything contained in theAppendix:

(i) the implementation or non-implementation ofany or all of the Major Transport NetworkChanges; and

(ii) an event or circumstance insofar as it affects thelevel of or right to Permitted Non-RoadRevenue,

cannot constitute or give rise to a Material AdverseEffect or be taken into account in determining:

(iii) whether a Material Adverse Effect has or willoccur; or


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(iv) the extent of redress to be provided in respectof an Appendix Event.

(b) If Clepco considers in good faith that an AppendixEvent has occurred and that it has had or will have aMaterial Adverse Effect, it may give a notice to theState setting out full details of that effect or potentialeffect. Such a notice will only be valid if given within12 months after the occurrence of the Appendix Eventbecoming known to Clepco.

(c) (i) It is agreed that any one of the Appendix Eventsin Items 1 to 9 (inclusive) which;

(A) when considered in isolation has had orwill have an adverse effect on any of thematters referred to in paragraphs (a) and(b) of the definition of Material AdverseEffect;

(B) when considered in isolation has not hadand will not have a Material AdverseEffect; and

(C) has been notified by Clepco to the Statewithin 12 months of its occurrencebecoming known to Clepco,

(herein referred to as a "Less than MaterialItem") may be further notified by Clepco to theState in accordance with sub-paragraph (ii).

(ii) If Clepco considers in good faith that a Lessthan Material Item has occurred, it may givefurther notice to the State in accordance withclause 2.9(b) when:

(A) notice is given under clause 2.9(b) inrespect of an Appendix Event in item 1 to9 (inclusive) of the Appendix; or

(B) a combination of Less than MaterialItems are considered in good faith tohave together had or together will have aMaterial Adverse Effect.

(iii) The combination of a Less than Material Itemtogether with an Appendix Event which has hador will have a Material Adverse Effect, or acombination of Less than Material Items whichtogether have had or will have a Material


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Adverse Effect, is deemed to be an AppendixEvent under Item 10 of the Appendix.

(d) When a valid notice is given under paragraph (b), theparties shall begin negotiations in good faith within 5Business Days after the date the State receives thenotice with the objective of agreeing within 20Business Days whether or not an Appendix Event hasoccurred and, if so, whether it has had or will have aMaterial Adverse Effect. It is acknowledged that,subject to the express provisions of this Deed an eventwhich is agreed or determined not to be a particularAppendix Event may nevertheless be agreed ordetermined to be another Appendix Event but it isagreed that no event shall fall within the ambit ofmore than one Appendix Event.

(e) If the parties do not reach agreement within the 20Business Days period, either party may refer thematter for expert determination under Article 16.

2.10 Overcoming a Material Adverse Effect

(a) Within 10 Business Days after it has been agreed ordetermined that an Appendix Event:

(i) has occurred; and

(ii) has had or will have a Material Adverse Effect,

the parties shall in good faith begin and continue tonegotiate in an endeavour to agree on an appropriatemethod of redress so as to achieve the outcomeprescribed in column 4 of the Appendix in relation tothe relevant Appendix Event.

(b) If the parties do not reach agreement on theappropriate method of redress within 20 BusinessDays of the time for commencing negotiations (orsuch extended period as they may agree), either partymay refer the matter for expert determination underArticle 16 by notice given to the other party.

(c) Subject to paragraph (d) the parties agree, and anythird person appointed under Article 16 shall berequired to accept, that appropriate methods of redressin respect of an Appendix Event (other than anAppendix Event described in Items 5, 8 and 9 of theAppendix, even if that event falls within Item 10 ofthe Appendix) may only include:


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(i) amending the Toll Calculation Schedule byvarying the restrictions applicable to Clepco'sability to charge tolls (and makingconsequential changes to the ESEP ProjectDocuments);

(ii) varying the Concession Period and the term ofthe Lease;

(iii) altering the allocation of risk between theparties as established under the ESEP ProjectDocuments (and making consequential changesto the ESEP Project Documents);

(iv) varying rights which the State has to receivepayment of monies under the ESEP ProjectDocuments (including amounts due forpayment, accruing, payable or likely to becomepayable);

(v) requesting the Lenders to restructure the Projectfinancing arrangements;

(vi) the State making a financial contribution to theESEP Project; or

(vii) adopting any other method of redress which theparties may agree, in their absolute discretion,in any particular context, to be appropriate.

(d) Subject to the commentary in column 3, and to clause12.10, in relation to Item 5 of the Appendix, theparties agree, and any third person appointed underArticle 16 shall be required to accept, that appropriatemethods of redress in respect of an Appendix Eventdescribed in Items 5, 8 and 9 of the Appendix (even ifthat event falls within Item 10 of the Appendix) mayonly include:

(i) amending the Toll Calculation Schedule byvarying the restrictions applicable to Clepco'sability to charge tolls (and makingconsequential changes to the ESEP ProjectDocuments);

(ii) varying the Concession Period and the term ofthe Lease;

(iii) varying rights which the State has to receivepayment of amounts under the ESEP ProjectDocuments (including amounts due for


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payment, accruing payable, or likely to becomepayable); or

(iv) adopting any other method of redress which theparties may agree, in their absolute discretion,in any particular context, to be appropriate.

(e) In the context of any particular Appendix Event, theavailability of the methods of redress specified inparagraphs (c) and (d) and the extent to which anysuch method of redress is available, is constrained inthe manner outlined in clauses 2.11 and 2.12 and inColumn 3 of the Appendix.

(f) The provisions of the Appendix must be read subjectto the provisions of this Deed.

(g) Each party shall ensure that the other party is, uponrequest, given a reasonable opportunity to considerinformation relevant to matters the subject ofnegotiation or determination pursuant to clause 2.9 orto this clause 2.10. This obligation does not, however,apply to information:

(i) of which those officers of the secondmentionedparty charged with the conduct of negotiationsunder that or this clause were aware; or

(ii) of which it would have been reasonable toexpect those officers were aware,

when formulating the secondmentioned party'sposition in respect of the matters the subject of thenegotiations or determination.

2.11 General Principles: Nature of Remedy

(a) In no case can the Concession Period or term of theLease be extended so as to result in the aggregateperiod exceeding 4454 years and 6 months from theLink Expected Completion Date except insofar as:

(i) either the State agrees that such an extension isan appropriate method of redress so as toachieve the outcome prescribed in column 4 ofthe Appendix in relation to an Appendix Eventor the extension is determined to be soappropriate in that context under Article 16; and

(ii) the relevant Appendix Event falls within any ofitems 5, 8 or 9 of the Appendix (even if thatevent falls within item 10 of the Appendix).


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(b) Notwithstanding paragraph (a), the State may elect tomake available as a method of redress, in the contextof any particular Appendix Event occurring after 3444years and 6 months from the Link ExpectedCompletion Date, the ability to extend the ConcessionPeriod and the term of the Lease, but only insofar asthe result of so doing (together with the result of anyprevious elections under this paragraph (b)) does notresult in an aggregate extension of more than 10 yearsafter 4454 years and 6 months from the Link ExpectedCompletion Date.

(c) Subject to clause 2.5 in relation to an Appendix Event of the type specified in paragraph 3(a) of Column 1 of the Appendix, theThe parties agree, and shall ensurethat any person appointed under Article 16 shallaccept, that:

(i) the method of redress involving the Statemaking a financial contribution to the ESEPProject shall, in the context of those AppendixEvents where that method is an availablemethod of redress, be considered as a measureof last resort and shall apply only to the extentthat the other methods of redress cannotreasonably be used so as to achieve the outcomeprescribed in column 4 in relation to theparticular Appendix Event; and

(ii) in all circumstances there can be no obligationon Clepco to provide additional financialcontribution to achieve an outcome prescribedin Column 4 in relation to the particularAppendix Event.

(d) For the avoidance of doubt, in assessing any redress which includes any extension of the Original Concession Period, the term of that extension must not adversely impact on the ability of Extension Notional Initial Equity Investors to achieve the relevant outcome prescribed in column 4 of the Appendix in relation to the relevant Appendix Event.

2.12 General Principles: Assessment of Extent of Remedy

(a) Under no circumstances shall either party be obligedto make available or be bound by a method of redress:


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(i) to the extent that it will achieve an outcome inexcess of that which is necessary to provide theredress required in respect of the relevantMaterial Adverse Effect and which isacknowledged may in no circumstances exceedthat which is necessary to address the extent ofthe relevant Material Adverse Effect; or

(ii) if the relevant Appendix Event is caused by abreach of an ESEP Project Document byClepco.

(b) The level of redress to be provided by a method ofredress agreed or determined to be appropriate (other than for an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix) and theissue of whether a particular Appendix Event has hador will have a Material Adverse Effect is to bedetermined net of:

(i) in the context of any determination as to thelevel of redress to be provided, the actual andprojected effect on the ability to repay ProjectDebt and, CTW Project Debt and WGT Project Debt and the ability of Original EquityInvestors to achieve an Equity Return and the Extension Equity Investor to achieve an Extension Equity Return which has been agreedor determined in relation to any GovernmentDirected Benefit relating to the Appendix Eventand (in the context of an Appendix Eventconstituted by a change or connectionimplemented or effected pursuant to paragraph2.4(e)), amounts paid or payable undersub-paragraph 2.4(e)(iv); and

(ii) in the context of any determination as towhether a particular Appendix Event has had orwill have a Material Adverse Effect, the actualand projected beneficial impact on the capacity,ability, level or timing referred to in thedefinition of "Material Adverse Effect" of anyGovernment Directed Benefit relating to theAppendix Event and (in the context of anAppendix Event constituted by a change orconnection implemented or effected pursuant toparagraph 2.4(e)), amounts paid or payableunder sub-paragraph 2.4(e)(iv).


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(c) In the context of an Appendix Event of the type referred to in paragraph 3(a) of column 1 of the Appendix, paragraph (b) shall not apply, but it is agreed that:[Not used].

(i) only for the purpose of determining the issue of whether the Appendix Event has had or will have a Material Adverse Effect, the effect of that event is to be determined net of any identifiable and measurable improvement on the level or timing referred to in the definition of Material Adverse Effect. (That determination will not affect the level of redress agreed or determined under sub paragraph (ii)); and

(ii) the level of redress to be provided by the method of redress agreed or determined to be appropriate is to be determined net of any identifiable and measurable improvements on:

(A) the ability of the Company or the Trustee to repay Project Debt and CTW Project Debt; and

(B) the ability of Equity Investors to achieve Equity Return,

which has resulted from traffic management measures implemented by or on behalf of the State or any Victorian Government Agency contemporaneously with the Appendix Event, or in mitigation of the effects of the Appendix Event or which has or will result from any payments in respect of the Appendix Event under the indemnity provided for in clause 2.4(e)(iv) and the provisions of clause 2.12(b) which provide for netting of Government Directed Benefits shall not apply to Appendix Events of the type specified in paragraph 3(a) of column 1 of the Appendix.

(d) Subject to clauses 2.5(e) and 2.9(a), the parties agree,and any person appointed under Article 16 shall berequired to accept, that the method of determining theeffect of an Appendix Event is a function of the periodduring which that Appendix Event occurs. If it occursin:

(i) the period between the date of this Deed and thesecond anniversary of the date of Delivery, thenthe effect of the Appendix Event is to be


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determined by comparing the projectionsderived using two computer models of theESEP Project. Both models would be BaseCase Financial Models, but one model would beamended so as to reflect the consequences ofthe Appendix Event; and

(ii) the period commencing on completion of theperiod referred to in sub-paragraph (i), then theeffect of the Appendix Event is to bedetermined by comparing the projectionsderived using the Financial Model (in a formwhich does not take into account the effects ofthe Appendix Event) with the projectionsderived using that model (after its alteration totake into account those effects).

(e) (i) Insofar as the method of redress agreed ordetermined to be appropriate (other than for an Appendix Event of the type specified in paragraph 3(a) of column 1 of the Appendix)involves the making of a financial contributionby the State, the amount of that contribution isto be determined net of moneys due andpayable to the State under the ESEP ProjectDocuments.

(ii) Each party shall use reasonable endeavours(which would not involve substantialexpenditure) to mitigate the adverseconsequences of an Appendix Event andreasonable endeavours to ensure that redressafforded under clauses 2.9 and 2.10 isefficiently applied and structured (so as, forexample, not to create or increase any liabilityfor Taxes, the liability for which need not beincurred or need only be incurred to a limitedextent) but the State has no right under thissub-paragraph to require the use of a particularstructure.

(iii) Insofar as Clepco reasonably incurs expenditurein undertaking such endeavours, and thatexpenditure would not have been incurred butfor its obligations under sub-paragraph (ii), theState shall indemnify Clepco for thatexpenditure provided that the State shall not beliable to indemnify Clepco for any suchexpenditure to the extent that the amount of it


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exceeds the expenditure (the "theoreticalexpenditure") which would have beenreasonably incurred by Clepco had the RelevantCircumstances (as defined in the IFA NinthAmending Deed) not occurred. Suchtheoretical expenditure shall be calculated using(other than insofar as it relates to CTW ProjectDebt or WGT Project Debt) the LendingDocuments in the form agreed by the Companyand the State under clause 4.2(f) of the IFANinth Amending Deed and the Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed), (insofar as it relates toCTW Project Debt) the Lending Documents inthe form accepted by the State under clause4.2(g) of the IFA Twenty-second AmendingDeed and the Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed).lxvii(insofar as it relates to WGT Project Debt) the Lending Documents in the form notified by the Company to the State in accordance with clause 17.7 of the City Link Concession Deed on or around the date of the Thirty-seventh Amending Deed.lix

(f) Subject to the other provisions of this Deed, anydetermination of the level of redress to be afforded torestore the ability of Original Equity Investors toachieve an Equity Return , Extension Equity Investors to achieve an Extension Equity Return or of theCompany or the Trustee to repay Project Debt, CTW Project Debt and CTWWGT Project Debt is to takeinto account reasonable costs, losses and liabilitiesincurred by Clepco as a result of the relevantAppendix Event provided that no account shall betaken of any such cost, loss or liability to the extentthat the amount of it exceeds that (the "theoreticalamount") which would have been incurred by Clepcohad the Relevant Circumstances (as defined in the IFANinth Amending Deed) not occurred. Suchtheoretical amount shall be calculated using (otherthan insofar as it relates to CTW Project Debt or WGT Project Debt) the Lending Documents in the


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form agreed by the Company and the State underclause 4.2(f) of the IFA Ninth Amending Deed andthe Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed), (insofar as it relates to CTW Project Debt) theLending Documents in the form accepted by the Stateunder clause 4.2(g) of the IFA Twenty-secondAmending Deed and the Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed).lxviii(insofar as it relates to WGT Project Debt) the Lending Documents in the form notified by the Company to the State in accordance with clause 17.7 of the City Link Concession Deed on or around the date of the Thirty-seventh Amending Deed.lx

2.13 Interrelationship

Unless otherwise expressly provided, nothing in clauses 2.9to 2.12 inclusive derogates from either the nature or extentof any obligation owed to a party under this Deed or therights and powers arising from the breach of any suchobligation.

2.14 State's Rights in Emergencies

Nothing in this Deed precludes, limits or otherwise qualifiesthe operation of Laws relating to matters relating to health,safety, law and order, emergency services, emergencies orany of them.

2.14A VicRoads' ability to close roadslxix

(a) Nothing in the Deed restricts the ability of VicRoadsto exercise the power set out in clause 1 of Schedule 4of the Transport Act 1983, to close the ExhibitionStreet Extension, any road or part thereof where it isnecessary to do so by reason of a material risk to thehealth or safety of members of the public on or inclose proximity to the Exhibition Street Extension.

(b) The State must ensure that VicRoads consults withClepco (to the extent reasonable in the circumstances)before exercising the powers referred to in clause2.14A.

2.15 Clepco Legislative Authority


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Insofar as it is able under the Project Legislation the Stateshall provide for the nominee from time to time of Clepco tobe given sufficient and exclusive legislative authority(consistent with the general laws of Victoria relating to theuse, management and operation of roads) to discharge itsobligations under this Deed in respect of the repair,maintenance and operation of the Exhibition StreetExtension, including traffic management. However, this willnot include powers of a regulatory or enforcement nature,such as powers relating to safety or enforcement of rulesmade pursuant to such powers.

3. CONCESSION TERMS

3.1 Fees, Costs and Other Payments

(a) Clepco shall pay to the State rent under the Lease asprovided for in the Lease.

(b) Clepco shall pay to the State on demand reasonablecosts and expenses incurred or payable by the State:

(i) in exercising powers under clause 9.11;

(ii) in it or any Victorian Government Agencytaking reasonable measures outside ESEP Landor to manage traffic outside ESEP Land, to theextent required under arrangements approvedunder clause 7.4(a), to be taken by it or aVictorian Government Agency under the ESEPO & M Requirements; and

(iii) in it or any Victorian Government Agencytaking measures to deal with the effects of anyinterference with the flow of traffic onroadways in the vicinity of the ESEP Landcaused by the operation or maintenance of theExhibition Street Extension being measuresreasonably taken if the State has been (orshould have been), in accordance with thisDeed, requested by Clepco to deal with theinterference.

3.2 Approvals and Permits

(a) Clepco shall obtain and maintain all necessaryapprovals and permits from Government Agenciesrequired to enable it to perform its obligations underthe ESEP Project Documents, other than anyapprovals or permits for which the State is responsibleunder this Deed.


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(b) The State shall use all reasonable and properendeavours to assist Clepco in obtaining all necessaryapprovals and permits required to be obtained andmaintained by Clepco under paragraph (a).

3.3 Surrender on Expiry or Termination of Concession Period[Not used]

3.3A [Not used]

3.3AA [Not used]

3.3AB [Not used]

3.3AC [Not used]

3.3AD Meaning of Handover Condition

Handover Condition means:

(a) At the end of the Concession Period Clepco shall:

(i) surrender the Exhibition Street Extension and deliver to the State:

(A) the Plant; and

(B) such other plant and equipment required and used for the ESEP Project under the ESEP O & M Requirements,

including all rights, title and interest in the Exhibition Street Extension, such Plant and such other plant and equipment free from any encumbrances and in a state and condition which complies with the ESEP O & M Requirements, as applicable at the relevant time (provided, however, that insofar as the Plant and such other plant and equipment comprises items which are not fundamental to the efficient completion or ongoing operation of the ESEP Project (as applicable) and which are easily replaceable on commercial terms, the requirement to deliver all right, title and interest in those items would be deemed to have been satisfied if what is delivered is subject (only) to the interest of an owner under a bailment or hire purchase arrangement on arm's length, commercial, terms);

(ii) deliver to the State:


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(A) the manuals for the Plant;

(B) the Operation and Maintenance Manuals;and

(C) the maintenance records for the Exhibition Street Extension,

in a state and condition which complies with the ESEP O & M Requirements as applicable at the time of expiration; if handover of all or any part of the Exhibition Street Extension is to occur before the Final Expiry Date, the condition that the Exhibition Street Extension, ESEP Land (or the relevant parts of the Exhibition Street Extension and ESEP Land) would be in if Clepco had complied with all of its obligations in connection with the Exhibition Street Extension and ESEP Land (or the relevant parts of them) in accordance with this Deed up to the time of termination having regard to the time and circumstances of the termination (except where the Deed is terminated in accordance with clause 15.3); or

(b) if handover of all or any part of the Exhibition Street Extension is to occur on the Final Expiry Date, the condition that the Exhibition Street Extension and ESEP Land (or the relevant parts of the Exhibition Street Extension and ESEP Land) would be in as at that date if Clepco had complied with all of its obligations in in connection with the Exhibition Street Extension and ESEP Land (or the relevant parts of them) in accordance with this Deed.

3.3AE Obligations approaching end of O&M Phase

(a) (Handover Reviewer): No later than 12 months before the inspections to be undertaken in accordance with clause 3.3AE(d)(i), or as soon as reasonably practicable before the inspections to be undertaken in accordance with clause 3.3AE(d)(ii):

(i) the parties must meet to determine the identity of a Handover Reviewer to be appointed jointly by Clepco and the State to carry out the tasks identified in the Handover Clauses;

(ii) if the parties are unable to agree the identity of a Handover Reviewer in accordance with clause


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3.3AE(a)(i) within 20 Business Days of meeting, the State will appoint a Handover Reviewer; and

(iii) procure the novation to the State or its nominee of such contracts for services to which Clepco or the Operator is a party relating to the Exhibition Street Extension as the State specifies by notice to Clepco; the State and Clepco must jointly engage the Handover Reviewer in accordance with the terms of this Deed,

provided that the Handover Reviewer to be engaged must:

(iv) without limiting clause 7.5, grant or procure the grant to the State or its nominee of suchIntellectual Property Rights as shall enable the State or its nominee to be in a position to operate the Exhibition Street Extension and the Tolling System at the higher of performance levels specified in the ESEP O & M Requirements and those applicable immediately before the end of the Concession Period, with minimum disruption to their public use; andbe independent of the Transurban Group and the State;

(v) do all other acts and things to give effect to any of the matters referred to in sub paragraphs (i) to (iv) in order to enable the State or its nominee to be in a position to operate the Exhibition Street Extension and the Tolling System at performance levels required under sub paragraph (iv), with minimum disruption to their public use.be reasonably acceptable to the State and Clepco;

(b)Without limiting the foregoing, the parties agree to consult with each other to the extent appropriate, commencing at a reasonable time before the end of the Concession Period, with the intention of ensuring that the process of surrender and delivery on expiry or termination


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is effected as smoothly as possible.vi) have appropriate qualifications and experience; and

(vii)have no interest or duty which conflicts or may conflict with its functions as a Handover Reviewer.

(b) (Costs): The costs and expenses of the Handover Reviewer (including the Handover Reviewer's professional fees and any other costs incurred in accordance with the terms of its joint engagement) will be paid to the Handover Reviewer by the State.

(c) (Payment of costs): Clepco must pay to the State on demand, from time to time, 50% of the costs and expenses of the Handover Reviewer paid by the State under clause 3.3AE(b), excluding GST.

(d) (Joint inspection): Clepco, the State and the Handover Reviewer appointed under clause 3.3AE(a) must carry out joint inspections of the Exhibition Street Extension:

(i) where this Deed is to end on the Final Expiry Date, at least:

(A) 5 years before the Final Expiry Date; and

(B) every 6 months after that initial inspection until the end of the expiry of the Concession Period; or

(ii) where this Deed is to end earlier than the Final Expiry Date, within such shorter period before the date of termination as is required by the State,

(each a Condition Review Date).

(e) (Program to achieve proper Handover): Following each inspection undertaken in accordance with clause 3.3AE(d), the Handover Reviewer must give to the State and Clepco a report (Outstanding Matters Report) specifying:

(i) the details of:

(A) the maintenance and repair work required to be carried out by Clepco to meet the Handover Conditions and a program for undertaking such works, having regard to the time and circumstances of the inspection and ensuring that, where


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reasonably practicable, the program is consistent with any planned maintenance or repair work scheduled to be undertaken by Clepco in accordance with the Operation and Maintenance Manuals;

(B) [not used]; and

(C) all other obligations, services and activities to be carried out by Clepco in order for Handover to occur,

(collectively, the Handover Services);

(ii) the Handover Reviewer's opinion (together with its reasons for forming that opinion) of whether Handover will occur by the expiry of the Concession Period;

(iii) if the Handover Reviewer forms the opinion that Handover will not occur by the expiry of the Concession Period, the Handover Reviewer's opinion (together with its reasons for forming that opinion) of the likely duration of Clepco's obligation to perform Transition Services in accordance with clause 3.3AJ(a) (Anticipated Transition Services Period); and

(iv) an estimate of the total costs of undertaking the Handover Services and where applicable, the Transition Services, for the Anticipated Transition Services Period (Handover Bond Reference Amount).

(f) (Dispute): If either party does not agree with any of the matters determined by the Handover Reviewer in the Outstanding Matters Report, that party may refer the matter for resolution in accordance with Article 16 within 20 Business Days of the Outstanding Matters Report being received by it.

(g) (Condition Review Date): Notwithstanding the terms of the Handover Clauses, the State may by notice to Clepco:

(i) adjust the Condition Review Date to an alternative date which may not be earlier than 5 years before the Final Expiry Date;

(ii) elect to relieve Clepco from any obligation to undertake any of the Handover Services; or


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(iii) acting reasonably, increase the number of times and frequency with which the Handover Reviewer, the State and Clepco must inspect and assess the condition of the Exhibition Street Extension (or the relevant part of the Exhibition Street Extension), assess any Handover Services or prepare the Outstanding Matters Report, provided that the costs of undertaking such additional inspections will be borne by the State and will not be subject to recovery by the State under clause 3.3AE(c).

(h) (Review of Condition Review Date): If the State exercises its rights in accordance with clause 3.3AE(g)(ii):

(i) the ESEP O&M Requirements and any other relevant parts of the ESEP Project Documents will be varied to the extent agreed by the parties or, where not agreed, as determined by the Handover Reviewer; and

(ii) the amount calculated in accordance with the Variation Principles will be a debt due and payable by Clepco to the State and will also be subtracted from the Handover Bond Reference Amount.

(i) (Implement program): Without limiting Clepco’s obligations in accordance with this Deed, Clepco must:

(i) undertake the Handover Services and implement the program identified in the latest Outstanding Matters Report (or as otherwise determined under clause 3.3AE(f)), other than any Handover Services which the State has agreed to relieve Clepco from under clause 3. 3.3AE(g)(ii); and

(ii) within 20 Business Days after receiving an Outstanding Matters Report under clause 3.3AE(e), provide to the State a Performance Bond having a face value equal to 120% of the Handover Bond Reference Amount or such lower amount agreed by the State (Handover Bond), as security for the performance of Clepco’s obligations to perform the Handover Services and, where applicable, the Transition


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Services. Where the Handover Bond Reference Amount is disputed by a party and subsequently agreed between the parties or determined under clause 3.3AE(f), Clepco must provide a replacement Handover Bond having a face value equal to 120% of the revised Handover Bond Reference Amount agreed or determined. Where Clepco provides a replacement Handover Bond in these circumstances, or after the issue of a subsequent Outstanding Matters Report, the State must return the Handover Bond which is being replaced within 10 Business Days upon receiving the replacement Handover Bond.

3.3AF Reaching Handover

(a) (Notice of expected Handover): Clepco must:

(i) at least 60 Business Days prior to the date upon which it reasonably expects Handover to occur, give the State (with a copy to the Handover Reviewer) a notice setting out that date on which it expects Handover to occur; and

(ii) if, after Clepco gives the State and the Handover Reviewer a notice under clause 3.3AF(a)(i) the expected date upon which Clepco reasonably expects Handover to occur changes, promptly give a notice the State (with a copy to the Handover Reviewer) revising that date.

(b) (Notice by Clepco): When Clepco considers that Handover has occurred, Clepco must:

(i) notify the State and the Handover Reviewer of its opinion; and

(ii) request the Handover Reviewer to issue a Handover Matters Notice.

(c) (Notice from Handover Reviewer to parties): Within 45 Business Days after receiving a notice from Clepco under clause 3.3AF(b), (or within 20 Business Days where Clepco has previously given a notice under clause 3.3AF(b)) the Handover Reviewer must issue a notice to the parties:

(i) stating that in its reasonable opinion, Handover has occurred; or


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(ii) which:

(A) states that in its reasonable opinion, Handover has not occurred;

(B) provides details of matters or things (if any) which it considers are required to be remedied or rectified by the State or its associates in order for Exhibition Street Extension to meet the Handover Condition;

(C) specifies any Handover Services which it considers have not been completed by Clepco in accordance with the requirements of the Handover Clauses; and

(D) specifies the amount which it reasonably considers is required to be spent by the State or its associates to remedy or rectify the matters or things specified in clauses 3.3AF(c)(ii)B and 3.3AF(c)(ii)C,

(Handover Matters Notice).

(d) (Clepco response): Clepco must, within 20 Business Days after receiving the Handover Matters Notice, notify the State that it:

(i) agrees with the matters set out in the Handover Matters Notice (Handover Matters Agreement Notice); or

(ii) disagrees with the matters set out in the Handover Matters Notice, together with details of why Clepco disagrees (Handover Matters Disagreement Notice).

(e) (Handover Matters Agreement Notice): If Clepco gives the State a Handover Matters Agreement Notice or fails to give a Handover Matters Disagreement Notice in accordance with clause 3.3AF(d), then:

(i) the amount (if any) set out in the Handover Matters Notice will be a debt due and payable by Clepco to the State; and

(ii) the State may (at its absolute discretion):


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(A) make a demand under the Handover Bond to recover the amount (if any) set out in the Handover Matters Notice; or

(B) direct Clepco to carry out any Handover Services the subject of the Handover Matters Notice, in which case Clepco will be entitled to provide a further notice to the Handover Reviewer under clause 3.3AF(b) when it considers that Handover has occurred.

(f) (Handover Matters Disagreement Notice): If Clepco gives the State a Handover Matters Disagreement Notice, the parties must consult in good faith and use their reasonable endeavours to agree on the details or the amount referred to in the Handover Matters Notice.

(g) (Consequences of consultation): If the parties, following the consultation under clause 3.3AF(f):

(i) reach agreement that an amount is payable in respect of a Handover Matters Notice, then:

(A) the agreed amount will be a debt due and payable by Clepco to the State; and

(B) the State may (in its absolute discretion):

1) make a demand under the Handover Bond to recover the agreed amount; or

2) direct Clepco to carry out any Handover Services the subject of the Handover Matters Notice, in which case Clepco will be entitled to provide a further notice to the Handover Reviewer under clause 3.3AF(b) when it considers that Handover has occurred;

(ii) reach agreement that no amount is payable in respect of a Handover Matters Notice, then the State will return the Handover Bond to Clepco within 5 Business Days of such agreement; or

(iii) are unable to reach agreement as to whether an amount is payable in respect of a Handover Matters Notice and the amount of any payment


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within 10 Business Days after service of the Handover Matters Disagreement Notice, then:

(A) the State may (in its absolute discretion):

1) make a demand under the Handover Bond up to the amount set out in the Handover Matters Notice; or

2) direct Clepco to carry out any Handover Services the subject of the Handover Matters Notice, in which case Clepco will be entitled to provide a further notice to the Handover Reviewer under clause 3.3AF(b) when it considers that Handover has occurred; and

(B) either party may refer the matter for resolution in accordance with Article 16.

(h) (State to reimburse Clepco): The State must pay Clepco the difference between:

(i) the amount drawn from the Handover Bond following a demand under clause 3.3AF(g)(iii)(A)1); and

(ii) any lesser amount which is determined following the resolution of the dispute to be the amount referred to in the Handover Matters Notice,

within 5 Business Days of the resolution of the dispute.

(i) (No obligation in respect of monies): Clepco acknowledges and agrees that the State is under no obligation to apply any monies it receives under this clause 3.3AF towards the cost of satisfying the Handover Conditions or performing the Handover Services.

(j) (Acknowledgment): The parties acknowledge and agree that:

(i) upon the State drawing down on the Handover Bond in accordance with clause 3.3AF(e)(ii)(A), clause 3.3AF(g)(i)(B)1), or clause 3.3AF(g)(iii)(A)1) the Handover Services will be deemed to have been carried out by Clepco; and


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(ii) drawing down on the Handover Bond in accordance with clause 3.3AF(e)(ii)(A), clause 3.3AF(g)(i)(B)1) or clause 3.3AF(g)(iii)(A)1) is the State's sole and exclusive remedy for a failure by Clepco to carry out the Handover Services.

(k) (No limitation of rights): Nothing in this clause 3.3AF will limit the State's rights against Clepco, whether under this Deed or otherwise according to Law, in respect of any defect or other failure to comply with the Handover Clauses.

(l) (Return of Handover Bond): The State must:

(i) return the Handover Bond within 10 Business Days of the Handover Reviewer giving notice under clause 3.3AF(c)(i); or

(ii) where the Handover Reviewer has given a notice under clause 3.3AF(c)(ii) return the balance of the undrawn value of the Handover Bond to Clepco no later than 20 Business Days after:

(A) it has drawn on the Handover Bond; or

(B) the parties have agreed, or it has been determined, that no amount is payable in respect of a Handover Matters Notice.

3.3AG Handover of the Exhibition Street Extension and ESEP Land

(a) Without limiting clauses 3.3AH, 3.3AI and 3.3AK, upon the Final Expiry Date or, where this Deed is terminated earlier than the Final Expiry Date, as soon as reasonably practicable following the expiry of the Concession Period, Clepco must:

(i) (handover of the Exhibition Street Extension and ESEP Land): handover the Exhibition Street Extension and ESEP Land (as applicable) (including (subject to clause 3.3AI of this Deed and clause 10 of the IFA) all rights and interest in them) to the State or its nominee free from any encumbrances and in the Handover Condition;

(ii) [not used]:


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(iii) (transfer of rights): subject to any exceptions to the licences granted to the State or its nominee pursuant to clause 10 of the IFA, to the extent that it has not already been transferred, transfer to the State or its nominee all rights, title and interest in plant and equipment owned or held by Clepco or the Operator which is required to allow the State or its nominee to operate, maintain and repair the Exhibition Street Extension to the standards required of Clepco in accordance with this Deed free from any encumbrances;

(iv) (delivery of information): deliver to the State or its nominee all manuals, records, plans and other information under the control of Clepco which are relevant to the ESEP Project;

(v) (payment of insurance proceeds): pay to the State or its nominee any insurance proceeds from any Insurances for the repair and rebuilding of the Exhibition Street Extension to the extent not already repaired or rebuilt, and assign to the State any rights available to Clepco under the insurances set out in clause 13.3;

(vi) (transfer of approvals): do all acts and things necessary to enable the State or its nominee to have transferred to it all approvals necessary to deliver the Project or assist the State or its nominee to obtain such approvals; and

(vii) (delivery of project): do all other acts and things to enable the State or its nominee to be in a position to deliver the Project to the standards specified in accordance with this Deed, with minimum disruption.

(b) [Not Used].

3.3AH Subcontracts

Upon the Final Expiry Date or, where this Deed is terminated earlier than the Final Expiry Date, as soon as reasonably practicable following the expiry of the Concession Period (having regard to any subcontracts required to be retained by Clepco for the period of time which Clepco is required to perform any Transition Services under this Deed), Clepco must:


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(a) (novation of contracts): subject to clause 3.3AH(b) and clause 3.3AH(c), procure the novation or, if such novation cannot be procured, the assignment to the State or its nominee of:

(i) such subcontracts (excluding the Operating Services Agreement (CityLink) and the ESEP Service Agreement) as they relate to the Exhibition Street Extension as the State may nominate;

(ii) such contracts for services (excluding the Operating Services Agreement (CityLink) and the Service Agreement) to which Clepco or the Operator is a party relating to the Exhibition Street Extension as the State specifies by notice to Clepco; and

(ii) any leases, subleases and licences proposed to be novated or assigned by Clepco and agreed to by the State;

(b) (novation of Subcontracts (O&M – CityLink / WGT)):

(i) upon Consolidated Handover, procure the novation or, if such novation cannot be procured, the assignment to the State or its nominee of all Subcontracts (O&M –CityLink/WGT) (other than the Operating Services Agreement (CityLink) and any Enterprise-wide Subcontracts); or

(ii) otherwise, either:

(A) procure the partial novation or, if such partial novation cannot be procured, the partial assignment to the State or its nominee of those aspects of the Subcontracts (O&M – CityLink/WGT) (other than the Operating Services Agreement (CityLink) and any Enterprise-wide Subcontracts) that relate to the ESEP Project; or

(B) procure from each subcontractor who is a party to a Subcontract (O&M –CityLink/WGT) (other than the Operating Services Agreement (CityLink) and any Enterprise-wide


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Subcontracts) a new subcontract (New ESEP Subcontract) which is to be entered into by that subcontractor with the State or its nominee which:

(1) relates only to the provision of operation, maintenance, repair and/or tolling goods or services (including, where applicable, the provision of licensed materials) in relation to the ESEP Project; and

(2) is on the same terms as the relevant Subcontract (O&M –CityLink/WGT), other than in relation to pricing; and

(iii) in relation to pricing under the New ESEP Subcontract, use reasonable endeavours to procure from the relevant subcontractor an agreement to provide the relevant goods or services (including, where applicable, the provision of licensed materials) to the State or its nominee for a price that is no less favourable than the price for which those goods or services were provided to the ESEP Project, City Link Project and the WGT Project under the relevant Subcontract (O&M – CityLink/WGT), having regard to the proposed level of consumption of the goods or services by the State or its nominee under the New ESEP Subcontract compared to the consumption of those goods or services by the ESEP Project, City Link Project and the WGT Project; and

(c) (Enterprise-wide Subcontracts):

(i) provide the State with the following information in relation to each Enterprise-wide Subcontract:

(A) the identity of the counterparties to the Enterprise-wide Subcontract; and

(B) the nature of the goods or services provided or to be provided, or rights granted or to be granted, under the Enterprise-wide Subcontract; and

(ii) use reasonable endeavours to procure from each subcontractor who is a party to an


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Enterprise-wide Subcontract a new subcontract (New ESEP Subcontract) which is to be entered into by that subcontractor with the State or its nominee which:

(A) relates only to the provision of operation, maintenance, repair and/or tolling goods or services (including, where applicable, the provision of licensed materials) in relation to the ESEP Project; and

(B) is on the same terms as the relevant Enterprise-wide Subcontract, other than in relation to pricing; and

(iii) in relation to pricing under the New ESEP Subcontract, use reasonable endeavours to procure from the relevant subcontractor an agreement to provide the relevant goods or services (including, where applicable, the provision of licensed materials) to the State or its nominee for a price that is no less favourable than the price for which those goods or services were provided to the Transurban Group under the relevant Enterprise-wide Subcontract, having regard to the proposed level of consumption of the goods or services by the State or its nominee under the New ESEP Subcontract compared to the consumption of those goods or services by the Transurban Group.

3.3AI Material for exercise of Intellectual Property Rights

Other than in respect of the WGT Subcontractor IPR Material (which is addressed in Exhibit BBB to the City Link Concession Deed), upon the Final Expiry Date or, where this Deed is terminated earlier than the Final Expiry Date, as soon as reasonably practicable following the expiry of the Concession Period, Clepco must, to the extent not already provided under this Deed (but without limiting the Separation Plans (as defined under the City Link Concession Deed)), provide to the State or its nominee all reasonable documentation, information, assistance and materials as the State may reasonably require for the State's use or enjoyment of the Exhibition Street Extension and the Relevant Systems, to the extent such use or enjoyment is consistent with a licence granted to the State or its nominee


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or agreed under this Deed or clause 10 of the IFA (as applicable), including in respect of the Exhibition Street Extension, Relevant Systems, Proprietary Documentation, CityLink Base Software or CityLink Base IP (in the same manner to which Clepco used or enjoyed or was required to use or enjoy the Exhibition Street Extension, Proprietary Documentation, the CityLink Base Software or the CityLink Base IP ), including:

(a) a copy of that computer software (in object code and, subject to any exceptions to the licences granted to the State or its nominee pursuant to clause 10 of the IFA, source code format) and object code of computer software, together with all data (other than financial records stored within the Finance System (as defined in the Concession Deed)) and, documentation in Clepco’s possession that relates to that computer software, as installed on any computer hardware forming part of the Exhibition Street Extension or any traffic control room utilised in connection with the Exhibition Street Extension, provided that:

(i) except as set out in clause 3.3AI(a)(ii), where that computer software is Third Party Software provided to Clepco on an ‘as-a-service’ or similar basis, Clepco’s obligation to provide a copy of that computer software will be satisfied by procuring for the State or its nominee access to that computer software; and

(ii) where that computer software forms part of the TBO, OMCS or Asset Management System (as each of those terms are defined in the City Link Concession Deed), Clepco’s obligation to provide a copy of that computer software will be satisfied by providing a replica of the TBO, OMCS or Asset Management System (as each of those terms are defined in the City Link Concession Deed) (as applicable) in accordance with the applicable Separation Plan (as defined under the City Link Concession Deed) and Handover Condition; and

(b) all information and assistance necessary for the State or its nominee to use, operate and maintain (in the same manner to which Clepco used, operated and maintained or was required to use, operate or maintain) the computer software and Relevant


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Systems for the purposes for which they are licensed under clause 10 of the IFA.

3.3AJ Transition Services

(a) (Transition Services): If Handover has not occurred by the expiry of the Concession Period, Clepco must perform the Transition Services on and from the day after the expiry of the Concession Period until Handover has occurred.

(b) (Standard of Transition Services): The Transition Services must be carried out to a standard that is the higher of:

(i) the standard of performance required by this Deed; and

(ii) the standard of performance achieved by Clepco immediately prior to the expiry of the Concession Period,

in respect of the relevant operation, maintenance and repair activities undertaken in accordance with this Deed comprising the Transition Services, provided that Clepco is relieved from complying with:

(iii) clause 14.3(d);

(iv) any requirements relating to design life;

(v) a new standard or a material change in a standard introduced or made after the expiry of the Concession Period; and

(vi) the KPI Regime,

and the parties agree that Clepco will not be entitled to retain toll revenue collected while carrying out the Transition Services and will act as agent of the State in collecting any toll revenue.

(c) (Agreement of Commercial Terms): As soon as reasonably practicable following the earliest of:

(i) a Separation Notice (where applicable);

(ii) a State Notice of Intention to Terminate (where applicable);

(ii) the State’s written notice of its intention to terminate this Deed prior to the Final Expiry Date in accordance with clause 15.1 (where applicable); and


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(iii) the date of the Handover Reviewer's first Outstanding Matters Report,

Clepco and the State must meet to agree:

(iv) the Transition Services Fee (if any) to be calculated in accordance with clause 3.3AQ; and

(v) the terms upon which the Transition Services will be performed consistent with the requirements of clause 3.3AJ(b) having regard to:

(A) the time and circumstances of the termination;

(B) the Anticipated Transition Services Period; and

(C) standard terms and conditions at the time of termination on which a competent and reasonable operator of a toll road carrying out services similar to the Transition Services would be engaged, including:

1) applicable key performance indicators; and

2) risk allocation.

3.3AK Licence to perform Handover Services and Transition Services

(a) (Grant of access to Post Expiry Licensed Area): The State must grant or procure the grant to Clepco and its associates of a non-exclusive licence to those parts of the ESEP Land (or the areas which formed the ESEP Land on the expiry of the Concession Period) which are required by Clepco to carry out:

(i) any Handover Services not completed by the expiry of the Concession Period; and

(ii) to the extent Clepco is required to carry out the Transition Services in accordance with clause 3.3AJ(a), the Transition Services,

(the Post Expiry Licensed Area), with effect on and from the day after the expiry of the Concession Period until Handover occurs.


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(b) (No interference): When accessing or utilising the Post Expiry Licensed Area, the State must not, and must ensure that its associates and any other person permitted by it to access or utilise the Post Expiry Licensed Area do not, unnecessarily interfere with the carrying out of Clepco's obligations in relation to the Handover Services or the Transition Services (as applicable).

3.3AL [Not used]

3.3AM Assistance in securing continuity

Without limiting Clepco's other obligations in respect of Handover in accordance with the Handover Clauses, Clepco must:

(a) in the final 3 months before the Final Expiry Date (or such other period required by the State where the expiry of the Concession Period occurs earlier than the Final Expiry Date), train suitably qualified personnel nominated by the State in respect of the operation, maintenance and repair of the Exhibition Street Extension to a level of competency to operate, maintain and repair the Exhibition Street Extension to the standards required of Clepco in accordance with this Deed from the relevant expiry of the Concession Period; and

(b) before the expiry of the Concession Period, do all things reasonably required by the State to ensure the smooth and orderly transfer of responsibility for delivering the ESEP Project to the State or its nominee in accordance with the Handover Clauses, including:

(i) (meetings): meeting with the State and such other persons notified by the State to discuss the ESEP Project;

(ii) (access): providing access to its operations for managers and supervisors of the State or its nominee for the purpose of familiarisation; and

(iii) (information): providing sufficient information to the State or its nominee to determine the status and condition of the ESEP Project and any works program in place at the time.


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3.3AN Power of attorney

Clepco irrevocably:

(a) (attorney appointment): appoints the State, and the State's nominees from time to time, jointly and severally, as its attorney with full power and authority:

(i) with effect from the end of the Concession Period, to execute any agreement or novation contemplated by clause 3.3AH; and

(ii) to exercise the State's rights in accordance with clause 9.11; and

(b) (ratification): ratifies and confirms whatever action is taken by the attorney appointed by Clepco under clause 3.3AN(a).

3.3AO No double up

The parties acknowledge that WGT Co or the Company may discharge Clepco's obligations to:

(a) transfer, deliver or provide any benefit; and

(b) provide any services, access, information or training,

under the Handover Clauses, and the State agrees that discharge of such obligations by the Company or WGT Co will constitute full and final discharge of those obligations by Clepco and the State will have no Claim against Clepco in relation to a failure by Clepco to perform those obligations.

3.3AP Standard of performance

For the purposes of the Handover Clauses, in relation to the operation, maintenance and repair activities undertaken in accordance with this Deed, references to “the standards specified in accordance with this Deed” or “the standards required of Clepco in accordance with this Deed” means the higher of:

(a) the standards of performance required by this Deed; and

(b) the standards of performance achieved by Clepco immediately prior to the expiry of the Concession Period.

3.3AQ Transition Services Fee


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(a) (Obligation to pay Transition Services Fee): Subject to clause 3.3AQ(b):

(i) [not used]; and

(ii) Clepco will be entitled to payment of the Transition Services Fee (if any) monthly during the Transition Services Fee Entitlement Period.

(b) (Termination for default or natural expiry): The parties acknowledge and agree that:

(i) the Transition Services Fee will not be payable by the State where this Deed has been terminated prior to the Final Expiry Date under clause 15.1 of this Deed;

(ii) the Transition Services Fee will not be payable by the State where this Deed expires on the Final Expiry Date; and

(iii) where this Deed:

(A) has been terminated prior to the Final Expiry Date Period under clause 15.1; or

(B) expires on the Final Expiry Date,

the parties are not required to comply with clauses 3.3AQ(c) to 3.3AQ(j).

(c) [Not used].

(d) (Calculation of the Transition Services Fee): The parties agree that:

(i) the Transition Services Fee will comprise the following:

(A) the actual internal and external costs reasonably and properly incurred by Clepco in carrying out the Transition Services during the Transition Services Fee Entitlement Period, including the cost of effecting and maintaining insurances which a prudent service provider would maintain when providing services of a similar nature to the Transition Services; and

(B) a margin of 10% applied to the amount described in clause 3.3AQ(d)(i)(A);


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(ii) Clepco will be entitled to payment of the Transition Services Fee for the period calculated using the following formula:

Y = X - Z

where:

Y is the period for which A.Clepco is entitled to payment of the Transition Services Fee;

X is 6 months; andB.

Z is the period between the C.date of the the State’s written notice of its intention to Tterminate this Deed prior to the Final Expiry Date in accordance with clause 15.1 and the expiry of the Concession Period,

(Transition Services Fee Entitlement Period); and

(iii) where the value of Y, as calculated in accordance with clause 3.3AQ(d)(ii), is zero or a negative number, the Transition Services Fee will not be payable by the State.

(e) (Applicable rates): As soon as reasonably practicable following the earliest of the State Notice of Intention to Terminate (where applicable), the date of the State’s written notice of its intention to terminate this Deed prior to the Final Expiry Date in accordance with clause 15.1 (where applicable) and the date of the Handover Reviewer's first Outstanding Matters Report:

(i) Clepco and the State will meet to agree:

(A) the rates applicable to the calculation of the Transition Services, which must be reasonable having regard to (at the time of the calculation):


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1) in respect of internal costs of Transition Services, the costs of a competent and reasonable operator of a toll road carrying out services similar to those Transition Services; and

2) in respect of external costs of Transition Services, the costs of a competent and reasonable third party provider of services similar to those Transition Services (and who would be qualified to undertake those Transition Services) engaged on arm’s length terms, unless it is only feasible for the relevant Transition Services to be undertaken by Clepco's existing service provider, then at their existing rates; and

(B) the internal and external costs to be incurred by Clepco in carrying out any part of the Handover Services which would not have been required to be carried out by it had a Consolidated Handover been performed; and

(ii) if the parties cannot agree on the applicable rates within 3 months of their first meeting under this clause 3.3AQ(e), either party may refer the matter for resolution in accordance with Article 16.

(f) (Update to applicable rates): If, at any time following an agreement or determination under clause 3.3AQ(e), either party (acting reasonably) considers that:

(i) the rates so agreed or determined are no longer reasonable; or

(ii) subsequent to the initial agreement or determination the Handover Reviewer forms the opinion that Handover will not occur by the expiry of the Concession Period and therefore Clepco will be required to provide Transition Services,


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it may give notice of this to the other party and the process in clause 3.3AQ(e) will reapply.

(g) [Not used].

(h) [Not used].

(i) (Payment claim (Transition Services Fee)): If Clepco wishes to be paid the Transition Services Fee, Clepco must:

(i) by the 20th day of a calendar month in which Transition Services are carried out, submit to the State:

(A) a breakdown of the Transition Services carried out since the previous claim submitted by Clepco under this clause 3.3AQ(i)(i) (or in the case of the first claim, since the expiry of the Concession Period);

(B) the calculation of the Transition Services Fee payable in respect of such Transition Services; and

(C) a valid tax invoice from Clepco in respect of such amount; and

(ii) upon request by the State (acting reasonably), any further information or documentation necessary to substantiate the Transition Services Fee, on an open book basis.

(j) (State payment (Transition Services Fee)): Within 10 Business Days after receiving a notice from Clepco under clause 3.3AQ(i)(i), the State must:

(i) pay to Clepco the Transition Services Fee set out in Clepco's notice under clause 3.3AQ(i)(i); or

(ii) if it disagrees with the amount of the Transition Services Fee set out in the notice, pay the undisputed amount to Clepco (and either party may refer the matter for resolution in accordance with Article 16.)

(k) (No time bar): The parties acknowledge and agree that a failure by Clepco to submit the information (including the valid tax invoice) required by clause 3.3AQ(i) within the required time period will not:


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(i) constitute a breach of this Deed by Clepco; or

(ii) disentitle Clepco to subsequently claim payment for the relevant amount, provided it submits the required information (including the valid tax invoice).

3.4 Contract Sum

(a) (i) Subject to this clause 3.4 and clauses 3.5, 7.7and 8.8, Clepco shall pay to the State onDelivery for the design, construction anddelivery of the Exhibition Street ExtensionWorks the Contract Sum. However, if theamount of an adjustment is the subject of adispute as contemplated by clauses 3.5(f) or7.7(e), Clepco shall not be obliged to pay theportion of the Contract Sum in dispute until thedispute is resolved or determined.

(ii) If clause 8.2(h)(ii) applies and Clepco is inbreach of its obligation to pay the ContractSum, Clepco shall not be liable in damages forsuch breach but the State shall be entitled torecover the Contract Sum as a debt due andowing to it together with interest at the DefaultRate pursuant to clause 11.7.

(b) The amount of the Contract Sum shall be reduced ifDelivery occurs after the Forecast Delivery Date andthe Southern Link has achieved Completion (withinthe meaning of the City Link Concession Deed) priorto Delivery. In such a case, the Contract Sum shall bereduced by an amount equal to the aggregate of therelevant amount applicable to each day in the relevantperiod. In this paragraph (b):

(i) the relevant amount applicable to a day is theamount specified in the third column ofSchedule 2 in relation to the period in whichthat day occurs, as the amount so specified mayhave been adjusted prior to the relevant dayunder clause 3.5; and

(ii) the relevant period is the period commencingon (and including) the later of the date on whichthe Southern Link has achieved Completion


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(within the meaning of the City LinkConcession Deed) and 5 December 1999 andending on (but excluding) the date of Delivery.

(c) The amount of the Contract Sum may also change ifthe nature, cost of or timing of payments required inrelation to additional funding required for or inrelation to CLEP and the Exhibition Street Extensiondiffers from that assumed in the Base Case FinancialModel because:

(i) any of that funding constitutes an infrastructureborrowing (within the meaning of Division 16Lof Part III of the Income Tax Assessment Act1936) in relation to which a certificate (withinthe meaning of that division) is issued; or

(ii) of the application to that (or any of that)funding of any Law applied or introduced byway of variation to, or replacement of, eitherprovisions of that Division 16L or taxationbenefits contemplated in that Division 16L.

(d) The change in the Contract Sum as a result of an eventreferred to in paragraph (c) shall equal 50% of theadjustment agreed or determined under clause 3.5with respect to the event.

(e) If Delivery occurs before the Forecast Delivery Date,Clepco shall pay to the State on the 20th Business Dayafter that date an amount equal to 86% of actual grosstolling revenue derived in respect of the ExhibitionStreet Extension in the period to the Forecast DeliveryDate. The payment under this paragraph (e) is inaddition to that contemplated in paragraph (a).

(f) The State shall only make withdrawals from theContract Sum Account in accordance with the ESEPContract Sum Payment Directions Agreement.lxxii

(g) Clepco shall not be obliged to pay interest at theDefault Rate pursuant to clause 11.7 on any amountwhich is due and unpaid to the State under clauses 3.4and 8.8 if the sole reason for that payment not beingmade on its due date is the failure of the State towithdraw the relevant moneys from the Contract SumAccount (and apply those to discharge Clepco'spayment obligation) when obliged to do so under the


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ESEP Contract Sum Payment DirectionsAgreement.lxxiii

3.5 Late Delivery and IB Estimates

(a) The amount specified in column 3 of Schedule 2 inrelation to a particular period may be adjusted:

(i) by agreement of the State and the Companyunder clause 3.2 of the Fourth Amending Deed;or

(ii) as a result of the nature of the intersection ofBatman Avenue and Swan Street or the status ofBatman Avenue west of that intersection beingaltered from that which, at the time of thealteration, was either contemplated in the ESEPSpecification or provided for in a previousalteration for the purposes of this clause 3.5.

(b) The State must notify Clepco, at least 10 BusinessDays prior to Delivery, of any alteration of the typereferred to in paragraph (a)(ii). Any such notice shallbe accompanied by reasonably detailed particulars ofthe relevant alteration and the expected duration ofthat alteration. Any such notice is not to be taken as achange to the ESEP Specification for the purposes ofthis Deed.

(c) As soon as practicable after receipt of a notice fromthe State under paragraph (b), Clepco shall providethe State with:

(i) its estimate of the impact of the relevantalteration on the tolling revenue and operatingexpenses forecast in the Base Case FinancialModel; and

(ii) its estimate of the adjustments to be made to theamounts in column 3 of Schedule 2 consequentupon that impact on tolling revenue andoperating expenses,

together with reasonably detailed particulars of theway in which it arrived at those estimates.

(d) As soon as practicable after it becomes aware of, orreceives notice from the State of, an event referred toin paragraph 3.4(c) (infrastructure bond funding),Clepco shall provide the State with its estimate of theadjustment to be made to the Contract Sum, together


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with reasonably detailed particulars of the way inwhich it arrived at that estimate.

(e) An impact and adjustment to be estimated by Clepcounder this clause 3.5 shall be calculated by:

(i) changing the assumptions and information inthe Models to reflect the relevant alterationunder paragraph (a)(ii) or event underparagraph 3.4(c) (as applicable), and theconsequences of it; and

(ii) adjusting the amount specified in column 3 ofSchedule 2 or the amount of the Contract Sum(as applicable) to the extent necessary so thatthe results of operation of the Models, asamended, are consistent with those of theContract Sum Financial Criteria, pertinent to therelevant Model.

(f) If the State does not agree an estimate provided byClepco under this clause 3.5 within 10 Business Daysof the State's receipt of that estimate and theparticulars required to accompany it, the State andClepco shall be deemed to be in dispute in relation toit. Either party may refer that dispute for expertdetermination under Article 16.

(g) For the purposes of this clause 3.5, the "Models" arethe Models identified in the definition of "ContractSum Financial Criteria".

4. ESEP LAND, PTC LAND AND LEASE

4.1 General

(a) For the purposes of this Deed, Clepco will be deemedto have taken possession of ESEP Land on Delivery(for this purpose, clause 8.2(h)(ii) will not apply).

(b) Before Delivery as referred to in paragraph (a),Clepco will have no interest, right or title in ESEPLand, other than the right conferred under clause 8.5.

4.2 PTC Land Access Areas

(a) The State shall procure that rights of access in favourof Clepco and its nominees are granted pursuant toparagraph (d) with respect to the PTC Land AccessArea.

(b) The rights of access will:


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(i) be sufficient (but no more than that which issufficient) to enable access to be obtained toESEP Land where access to the ESEP Landcannot reasonably be obtained otherwise thanthrough the PTC Land Access Area; and

(ii) extend only insofar as is necessary to enable theperformance by Clepco of its obligations underthis Deed, including obligations under thisclause 4.2.

(c) Clepco shall ensure that any rights granted to it underthis clause are exercised:

(i) solely for the purpose of obtaining access toESEP Land;

(ii) only to the extent which is necessary to enableClepco to perform its obligations under thisDeed;

(iii) in a way which is consistent with each PTCAccess Condition; and

(iv) in a way which minimises disturbance to the useof the PTC Land Access Area for the provisionof efficient, adequate, safe and reliable publictransportation services,

and shall, in any event, ensure that each PTC AccessCondition is observed.

(d) Clepco shall notify the Public Transport Corporationin accordance with the PTC Access Conditions ofeach date on which it requires rights of access andshall provide a copy of each such notice to the State atthe same time. If notice is given by Clepco inaccordance with this paragraph in relation to a part ofthe PTC Land Access Area, the rights of access towhich this clause relates are granted to that part asfrom the date specified in the notice.

(e) Any rights of access granted under this clause willbind and be exercisable against any owner or occupierof the PTC Land Access Area.


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(f) The State holds the benefit of the undertakings madeby Clepco made under this clause 4.2 on trust foritself and for the Public Transport Corporation, withthe intent that each of the State and the PublicTransport Corporation may enforce thoseundertakings. The consent of the Public TransportCorporation is not however, required for anyamendment or waiver affecting those undertakings orthe rights arising in relation to them.

4.3 Other Land

(a) If requested by Clepco to do so, then to the extentpermitted by the Melbourne City Link Authority Actor the Project Legislation, the State shall, at Clepco'sexpense, endeavour in good faith to make available orprocure for Clepco such rights of access over land(outside the ESEP Land and the PTC Land AccessArea) specified in the request as may reasonably berequired to enable Clepco to perform the ESEPETTM Works or otherwise to perform its obligationsor exercise its rights under this Deed or the Lease.Clepco will indemnify the State in respect of all costsincurred by the State in performing its obligationunder this paragraph.

(b) Subject to paragraph (a) and clauses 4.2, 4.6 and 8.5,the State is not responsible for providing Clepco withrights relating to any land.

(c) Clepco shall bear all risks associated with obtainingall other such rights.

4.4 Occupation and Restoration

Without limiting the Handover Clauses, clauses 3.3, 4.2 and8.5 or any of its obligations at Law, Clepco shall complywith the following obligations in relation to land to which ithas access under clause 4.2 or 8.5, which does not or willnot (having regard to clause 4.6) form part of land thesubject of the Lease:

(a) cause as little harm and inconvenience and do as littledamage as possible to the land and anything on orgrowing on the land;

(b) remain on the land only for such period as isreasonably necessary;

(c) remove from the land on completion of occupation allplant, machinery, equipment, goods or buildings


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brought onto, or erected on, the land other than any ofthose things that the State, a relevant VictorianGovernment Agency or the owner or occupier agreesmay be left on the land;

(d) subject to the ESEP ETTM Works required to beperformed on any part of the ESEP Land, leave theland, as nearly as possible, in the condition in which itwas immediately before the land was occupied; and

(e) use reasonable endeavours to co-operate with theState, the relevant Victorian Government Agency orother owner or occupier of the land.

4.5 Condition of Land and Structures

(a) The State makes no representation and gives nowarranty to Clepco in respect of:

(i) subject to clause 12.7, the condition or state ofrepair of:

(A) the PTC Land Access Area; or

(B) any structure on the PTC Land AccessArea;

(ii) the location or availability of Services inrespect of ESEP Land or the PTC Land AccessArea;

(iii) any matter accepted in paragraph (b).

(b) Subject to clauses 2.9 and 2.10, Clepco accepts thePTC Land Access Area and structures on the PTCLand Access Area:

(i) in their condition and state of repair from timeto time;

(ii) subject to all defects, including sub-surface soilconditions;

(iii) (except as provided in clause 12.7) subject toany pollution or contamination, whether or notknown to the State, or a Government Agency;

(iv) subject to all easements and rights of way infavour of Victorian Government Agencies orUtilities; and


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(v) subject to any third party claims or rights, inrespect of historic sites or buildings oraboriginal sacred sites.

(c) The State shall procure that each relevant VictorianGovernment Agency shall use reasonable endeavoursto confer on Clepco, all its rights in relation to defectsin an existing structure on ESEP Land against otherpersons where:

(i) liability in relation to those rights is not bornedirectly or indirectly by the State or anyVictorian Government Agency; and

(ii) the conferral of those rights does not and couldnot adversely affect the State's rights andremedies in respect of that existing structure orthe Exhibition Street Extension Works.

4.6 Lease

(a) Subject to clause 4.7 and paragraph (b), from the dateon which Delivery occurs (for this purpose clause8.2(h)(ii) shall not apply) the State shall grant, andClepco shall accept, a Lease.

(b) The Lease to be granted and accepted under paragraph(a) will provide for a lease of such of the land (or alease of such interests in such of the land) as isdescribed in paragraphs (a) and (b) of the definition of"ESEP Land" as is necessary for Clepco to havepossession of, and a grant of such easements oversuch of that land as is necessary for Clepco to have, inorder for it to perform its obligations and exercise itsrights under this Deed and the Lease but excludingthat stratum of land on which the ESEP AncillaryWorks and Operations will occur and, notwithstandingthe foregoing, a grant of such easements over thestratum of land comprising the Tram Crossing Area asis necessary for Clepco to have in order for it toperform its obligations and exercise its rights underthis Deed and the Lease. In relation to that part of theESEP Land as does not relate to the elevatedcomponent of the Exhibition Street Extension,however, the lease to be provided for will not apply toany of the surface of the ESEP Land as is beyond theboundaries comprising the footpaths on either side ofthe Exhibition Street Extension except insofar as:lxxiiv


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(i) fences or barriers forming part of the ExhibitionStreet Extension Works are beyond butimmediately next to those boundaries, in whichcase the Lease will not apply to any of thesurface of the ESEP Land as is beyond theboundaries constituted by those fences orbarriers; or

(ii) is necessary to incorporate the ESEP ETTMWorks.

The ESEP Land to be subject to the Lease so providedfor is to be identified in the plan of survey referred toin clause 4.7(a). It is recognised that such lease may,in part, be only of interests in land or of undividedstrata of land.

(c) The State and Clepco shall consult, in good faith,before the State grants the Lease in an endeavour toagree on how the operation of paragraph (b) affectsthe land (and interests in land) to be the subject of theLease.

(d) If the parties do not reach agreement under paragraph(c) within 28 days of notice being given by a partythat it requires the matter to be determined underArticle 16, either party may refer the matter for expertdetermination under Article 16.

4.7 Procedures

(a) The State shall, as soon as practicable in all thecircumstances:

(i) procure the preparation of a plan of survey toenable the Lease to be completed and executedand a folio of the Register (within the meaningof the Transfer of Land Act 1958) created for it;and

(ii) procure that the plan of survey (or relevant partof it) is annexed to the Lease given by it toClepco under paragraph (d) and identifies eachnecessary easement referred to in paragraph4.6(b).lxxiiilxv

(b) Clepco shall co-operate with the State to enable theState to perform its obligations under paragraph (a)and the State and Clepco shall each pay one half ofthe aggregate of the reasonable cost of preparing the


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plan of survey and reasonable costs incurred inproviding that co-operation.

(c) The Lease will be completed by the State.

(d) The State shall give the Lease to Clepco as soon aspracticable after the plan of survey is available.

(e) Clepco shall execute the Lease within 14 days afterreceiving it.

(f) The State shall, as soon as reasonably practicable,produce to the Land Titles Office such documentsrelating to the Lease as it may be necessary to soproduce in order to enable the creation of a folio ofthe Register (within the meaning of the Transfer ofLand Act 1958) for the Lease.lxxviv

(g) Notwithstanding that the Lease may not have beenexecuted, the State and Clepco will be bound as fromthe date on which Delivery occurs (for this purposeclause 8.2(h)(ii) shall not apply) as if it had beenexecuted.

(h) Clepco shall promptly stamp and, (if applicable), takeall steps to enable registration of the Lease.

4.8 Land Tax

(a) Land tax will not be assessed by or payable to theState on any part of the ESEP Land:

(i) that is utilised for the purpose of a roadway; or

(ii) which is landscaped or comprises embankments(as long as the relevant part is not being usedfor commercial, including advertising,purposes).

(b) The State shall, however, indemnify Clepco againstany liability it may have for land tax in respect of thePTC Land Access Area.

4.9 Services to the Project

(a) Clepco shall comply with all provisions of the ESEPProject Documents and the ESEP O& MRequirements in relation to:

(i) installing;

(ii) relocating;

(iii) altering; or


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(iv) maintaining,

any Services other than (subject to clauses 4.11, 4.12and 4.13) those Services comprising the ESEPAncillary Works and Operations.

(b) As between the parties, Clepco shall be responsiblefor the cost of all Services supplied to Clepco, or anyContractor in respect of the ESEP Project.

4.10 Rights of the State

(a) Clepco acknowledges the right of the State, and ofGovernment Agencies providing Services to enterupon the ESEP Land to:

(i) install;

(ii) relocate;

(iii) alter; or

(iv) maintain,

Services subject to the Project Legislation, whetherfor the purposes of the ESEP Project or otherwise.During the Concession Period, the State shall usereasonable endeavours to ensure that reasonablenotice of the exercise of this right is given to Clepco(except in the case of emergencies) and that workdone in relation to the Services is performed in anefficient and timely manner so as to minimiseinterference with the execution, completion,commissioning, operation or maintenance of the ESEPETTM Works and the operation or maintenance of theExhibition Street Extension or any material part of it.Subject to the Project Legislation Clepco alsoacknowledges that none of the ESEP ProjectDocuments are intended to limit the rights of thoseproviding Services (including Utilities) under Law.

(b) The State shall be entitled to authorise a provider ofServices not required for the purposes of the ESEPProject to enter upon ESEP Land, to:

(i) install;

(ii) relocate;

(iii) alter; or

(iv) maintain,


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Services subject to the Project Legislation, providedthe work done in relation to the Services does notinterfere (other than on a temporary basis) with theexecution, completion, commissioning, operation ormaintenance of the ESEP ETTM Works and theoperation or maintenance of the Exhibition StreetExtension. During the Concession Period the Stateshall use reasonable endeavours to ensure thatreasonable notice of any grant of authority under thisparagraph is given to Clepco (except in the case ofemergencies).

4.11 Exhibition Street Extension Tramways, Signals andDrainage

In addition to the other rights of the State and ofGovernment Agencies referred to in this Article 4, Clepco:

(a) acknowledges the right of each ESEP AncillaryWorks Contractor to engage in ESEP Ancillary Worksand Operations in accordance with this Deed;

(b) acknowledges that any right of possession it may haveunder, or as a consequence of, anything contemplatedin, this Deed or the Lease is subject to such rights asmay be necessary or desirable to enable or facilitate:

(i) the use or undertaking by ESEP AncillaryWorks Contractors of ESEP Ancillary Worksand Operations;

(ii) the use by members of the public of the publictransportation services relevant to ESEPAncillary Works and Operations;

(iii) the use by members of the public of theExhibition Street Extension for usual pedestrianand cycling activities;

(iv) (if applicable) the completion by the State ofPart C under the ESEP Construction Contract;and

(v) the discharge by the State of its obligationsunder clause 8.3;

(c) shall ensure that any powers vested in it, its nomineeor the Link Corporation (within the meaning of theProject Legislation) pursuant to either legislativeauthority of the type referred to in clause 2.15 or theTransport Act 1983 are not exercised in a way which


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is inconsistent with its obligations under this clause4.11. Given Sections 16 and 17 of the ProjectLegislation, this provision is included in this Deed forthe avoidance of doubt only;

(d) insofar as its consent or approval or the consent orapproval of a Contractor is required under the ProjectLegislation in relation to ESEP Ancillary Works andOperations, Clepco shall give, or shall use its bestendeavours to procure that the Contractor gives, suchconsent or approval.

4.12 State Role in ESEPAncillary Works and Operations

The obligations of the State under clause 4.10 do not applyin relation to ESEP Ancillary Works and Operations.Insofar, however, as any particular manner or timing of useor undertaking of any ESEP Ancillary Works andOperations would, or would reasonably be considered to belikely to, unduly disturb the efficient performance by Clepcoof its obligations or efficient exercise of its rights under thisDeed in relation to the ESEP ETTM Works or theExhibition Street Extension, the State shall, subject to clause4.14:

(a) insofar as the relevant use or undertaking is, or islikely to be, frequent or ongoing or relates to the TramCrossing Area:lxxvii

(i) enter into and procure that the relevant ESEPAncillary Works Contractor enters into goodfaith discussions with Clepco (or its nominee),being discussions with a view to achieving aconsensus as to the manner or timing of usingor undertaking the relevant ESEP AncillaryWorks and Operations so as not to (or so as notto be likely to) unduly disturb the efficientperformance of Clepco's obligations and theefficient exercise of its rights under this Deed inrelation to the Exhibition Street Extension; and

(ii) ensure that the relevant ESEP Ancillary Worksand Operations are used or undertaken in amanner which is consistent with any consensusso achieved; and

(b) subject to any consensus so achieved, use orundertake (or ensure that the relevant ESEP AncillaryWorks Contractor uses or undertakes) the relevant


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ESEP Ancillary Works and Operations in a mannerand at times which do not unduly disturb the efficientexercise of those rights or efficient performance ofthose obligations.

4.13 Clepco's Role in ESEP Ancillary Works and Operations

Insofar as any particular manner or timing of performance ofany of its obligations, or the exercise of any of its rightswould, or would reasonably be considered to be likely to,unduly disturb the efficient use or undertaking of any ESEPAncillary Works and Operations, Clepco shall:

(a) insofar as that performance or exercise is, or is likelyto be, frequent or ongoing or relates to the TramCrossing Area:lxxviii

(i) enter into good faith discussions with the State(or ESEP Ancillary Works Contractorsnominated by it), being discussions with a viewto achieving a consensus as to the manner ortiming of exercise of the relevant right orperformance of the relevant obligation so as notto (or so as not to be likely to) unduly disturbthe efficient undertaking and use of the relevantESEP Ancillary Works and Operations;

(ii) exercise the right or perform the obligation in away which is consistent with any consensus soachieved; and

(b) subject to any consensus so achieved, design, execute,commission and complete the ESEP ETTM Worksand operate, maintain and repair the Exhibition StreetExtension, in a manner and at times which do notunduly disturb the efficient use and undertaking ofESEP Ancillary Works and Operations.

4.14 Private ESEP Ancillary Works Contractor

(a) If:

(i) (A) the Public Transport Corporation or theESEP Ancillary Works Contractor beinga Victorian Government Agency("Relevant Entity") is required by Law orcontract to; or

(B) the State is required by Law or contractto procure or ensure that a RelevantEntity,


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perform obligations (whether monetary or nonmonetary and whether actual, contingent orfuture) owing by the State or that RelevantEntity to Clepco ("Clepco Obligations") under,or contemplated by, the ESEP ProjectDocuments;

(ii) that Relevant Entity is the subject of a Law oran agreement made after the date of this Deedwhich transfers to, or vests in, another entity("Transferee") all or part of the rights,activities, properties and obligations of thatRelevant Entity; and

(iii) neither the Relevant Entity nor the Transfereeis, immediately following that transfer orvesting, legally bound to Clepco to perform allor any of the Clepco Obligations,

then, the State acknowledges and agrees that itremains bound to fully perform, or procure theperformance of, those Clepco Obligations referred toin sub-paragraph (iii).

(b) Clepco acknowledges and agrees that any right,activity, property or obligation of a Relevant Entitywhich is transferred to, or is vested in, a Transferee ascontemplated by paragraph (a)(ii), becomes, where thecontext permits, the right, activity, property orobligation of that Transferee.

(c) A Clepco Obligation transferred to a Transferee ascontemplated in sub-paragraph (a)(ii) is only capableof subsequently being transferred to another personwhere that person, following the transfer, will belegally bound to Clepco to perform that ClepcoObligation.

(d) An obligation of the State under clause 4.12 onlyarises at any time in respect of particular ESEPAncillary Works and Operations or a particular ESEPAncillary Works Contractor if:

(i) the ESEP Ancillary Works Contractor relevantto the particular ESEP Ancillary Works andOperations or the particular ESEP AncillaryWorks Contractor (as applicable) is, at thattime, a Victorian Government Agency; or


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(ii) paragraph (a) applies to impose the obligationon the State at that time.

4.15 First State Noticelxixvii

Where the State, a Government Agency, a Nominee or aSubnominee:

(a) requires the construction of any building or structurein, or other use of, the State Airspace which would (orin the reasonable view of the State could) adverselyaffect Clepco's use (in accordance with this Deed) ofthe Restricted Lease Area; or

(b) requires access to the Restricted Lease Area inconnection with the:

(i) construction, operation, maintenance, repair orother use of any building or structure in; or

(ii) other use of,

the State Airspace,

the State must provide Clepco with, or must procure theprovision to Clepco of, a notice under this clause 4.15("First State Notice") within a reasonable period of timebefore the construction in, or other use of, the State Airspaceor access to the Restricted Lease Area (as the case may be)is first required.

4.16 Content of First State Noticelxxviii

A First State Notice must set out:

(a) a description of:

(i) the construction of the building or structure in,or other use of, the State Airspace including:

(A.) work method statement;

(B.) job safety analysis; and

(C.) program; and

(ii) the nature, duration and extent of access (if any)required to the Restricted Lease Area inconnection with the:

(A.) construction, operation, maintenance,repair or other use of the building orstructure in; or

(B). other use of,


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the State Airspace;

(b) a detailed description of the adverse effect which:

(i) the construction of the building or structure in,or other use of, the State Airspace; or

(ii) the access required under paragraph (a)(ii),

would (or in the reasonable view of the State could)have on Clepco's use (in accordance with this Deed)of the Restricted Lease Area;

(c) the reasonable (having regard to the RelevantInterface Considerations) measures which the noticeproposes be implemented by the State, GovernmentAgency, Nominee or Subnominee (on the one hand)and Clepco (on the other hand) for minimising theadverse effect which:

(i) the construction of the building or structure in,or other use of, the State Airspace; or

(ii) the access required under paragraph (a)(ii),

would (or in the reasonable view of the State could)have on Clepco's use (in accordance with this Deed)of the Restricted Lease Area; and

(d) if so required, a request for a description of thematters and estimates of the amounts against whichClepco then reasonably considers that Clepco couldseek to be indemnified under clause 4.27 or againstwhich the Company could seek to be indemnified.

4.17 Urgent Noticelxxix

(a) If:

(i) the State, a Government Agency, a Nominee ora Subnominee needs:

(A.) to carry out urgent repair or maintenancework which requires access to theRestricted Lease Area; or

(B.) to urgently use the State Airspace in away which would (or in the reasonableview of the State could) adversely affectClepco's use (in accordance with thisDeed) of the Restricted Lease Area,


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or to change the access or use previouslynotified under subsubparagraph A or B; and

(ii) the urgency has not been caused by the failureof the State, Government Agency, Nominee orSubnominee to take reasonable alternative stepsto address the matter giving rise to the need toaccess the Restricted Lease Area or use theState Airspace,

then the State need not provide (or procure theprovision of) a First State Notice, provided that theState provides (or procures the provision of) writtenor oral notice to an operator at the Link Control Roomof the access or use (or changed access or use)required at any time prior to that access or use (orchanged access or use) ("Urgent Notice").

(b) Subject to Urgent Notice having been provided, theState, the Government Agency, the Nominee or theSubnominee (as the case may be) may have access tothe Restricted Lease Area or may use the StateAirspace as notified by an Urgent Notice.

(c) The State will use its best endeavours to provide (orprocure the provision of) as much prior notice as isreasonably possible under paragraph (a) having regardto the nature of the urgent repair or maintenanceworks or use of the State Airspace required.

(d) After a First State Notice requiring the construction ofany building or structure in, or other use of, the StateAirspace has been given, the State and Clepco must:

(i) as soon as reasonably practicable,independently of the procedure under clauses4.18 to 4.24, and without limiting this clause4.17, negotiate in good faith in an endeavour toagree reasonable (having regard to the RelevantInterface Considerations) written protocols fornotifying, providing, obtaining and otherwisedealing with any urgent:

(A.) access to the Restricted Lease Area; or

(B.) use of the State Airspace which would (orin the reasonable view of the State could)have an adverse effect or Clepco's use (inaccordance with this Deed) of theRestricted Lease Area,


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which could be required by the State inaccordance with this clause 4.17; and

(ii) comply with the protocols (and the State shallprocure the compliance of any GovernmentAgency, Nominee or Subnominee) agreed undersubparagraph (i), as amended from time to timeby written agreement between the parties.

4.18 Further State Notice/slxxxii

As an alternative to, or after, giving a State Change Noticeunder clause 4.25(f) if, from time to time, the State requiresany change to:

(a) the access or the measures for minimising the adverseeffect of such access; or

(b) the measures for minimising the adverse effect of theconstruction in, or other use of, the State Airspace,

notified in a First State Notice or a Further State Notice,then the State may provide Clepco with (or procure theprovision to Clepco of ) a further notice setting out theapplicable matters referred to in clause 4.16 ("FurtherState Notice").

4.19 Clepco Responselxxxiii

(a) Subject to paragraph (g), Clepco must, within 20Business Days of the date of receiving a First StateNotice or Further State Notice, give the State writtennotice in accordance with this clause 4.19 ("FirstClepco Response").

(b) If the First State Notice or Further State Noticerequires access to the Restricted Lease Area, thenClepco must in the First Clepco Response:

(i) consent (in whole or in part, as the case may be)to the access required and the measuresproposed;

(ii) withhold consent (in whole or in part, as thecase may be) to the access required and themeasures proposed, subject only to the Stateagreeing to the measures and other conditions ineach case reasonably (having regard to theRelevant Interface Considerations) required byClepco:


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(A.) to be implemented by the State,Government Agency, Nominee orSubnominee (on the one hand) andClepco (on the other hand); and

(B.) for minimising the adverse effect whichthe access required would have onClepco's use (in accordance with thisDeed) of the Restricted Lease Area; or

(iii) where the access required or the measuresproposed would require a full closure (whetherof itself or when aggregated with other fullclosures required in any period of 12 months) inexcess of the period referred to in clause4.26(e):

(A.) either consent or conditionally withholdconsent on the basis set out insubparagraph (i) or (ii) (as the case maybe); or

(B.) withhold consent.

(c) Unless the consent provided under paragraph(b)(iii)(A) expressly acknowledges that the fullclosure to which consent is being given will result inthe period referred to in clause 4.26(e) beingexceeded, then that consent will be deemed to be aconsent to the full closure to the extent only that it willnot result in that period being exceeded.

(d) Where, other than as set out in paragraph (b), theconstruction of any building or structure in, or theother use of, the State Airspace set out in a First StateNotice would (or in the reasonable view of Clepcocould) adversely affect Clepco's use (in accordancewith this Deed) of the Restricted Lease Area, thenClepco must in the First Clepco Response:

(i) where measures have been proposed underclause 4.16(c)(i) (whether in a First StateNotice or a Further State Notice):

(A). consent (in whole or in part, as the casemay be) to the measures proposed;

(B.) where, in the reasonable view of Clepco,there are reasonable (having regard to theRelevant Interface Considerations)alternative measures which would


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minimise the adverse effect on Clepco'suse (in accordance with this Deed) of theRestricted Lease Area - withhold consent(in whole or in part, as the case may be)to the measures proposed and propose thereasonable alternative measures; or

(C.) where:

(1) the measures proposed in the FirstState Notice; or

(2) regardless of whether measureshave been proposed in the First StateNotice, the measures which oughtreasonably (having regard to theRelevant Interface Considerations)to be implemented,

would require a full closure (whether ofitself or when aggregated with other fullclosures required in any period of 12months) in excess of the period referredto in clause 4.26(e):

(3) either consent or conditionallywithhold consent on the basis set outin subsubparagraph A or B (as thecase may be); or

(4) withhold consent,

to the measures proposed or required (asthe case may be); or

(ii) where measures have not been proposed underclause 4.16(c)(i) - propose reasonable (havingregard to the Relevant Interface Considerations)measures, to be implemented by the State,Government Agency, Nominee or Subnominee(on the one hand) and Clepco (on the otherhand) for minimising the adverse affect whichthe construction of any building or structure in,or other use of, the State Airspace would (or inthe reasonable view of Clepco could) have onClepco's use (in accordance with this Deed) ofthe Restricted Lease Area.

(e) Unless the consent provided under paragraph(d)(i)(C)(3) expressly acknowledges that the fullclosure to which consent is being given will result in


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the period referred to in clause 4.26(e) beingexceeded, then that consent will be deemed to be aconsent to the full closure to the extent only that it willnot result in that period being exceeded.

(f) If so requested in the First State Notice or FurtherState Notice, Clepco must in the First ClepcoResponse set out a description of the matters and anestimate (to which Clepco and the Company will notbe bound) of the amounts against which Clepco thenreasonably considers Clepco could seek to beindemnified under clause 4.27 or against which theCompany could seek to be indemnified.

(g) Subject to paragraph (h), if:

(i) a First State Notice or Further State Notice failsto set out any of the information it is required toset out under clause 4.16; and

(ii) that information is reasonably required byClepco to enable it to give a First ClepcoResponse,

then:

(iii) Clepco must give the State a written request forthat information within the 20 Business DayPeriod referred to in paragraph (a); and

(iv) that 20 Business Day period will be suspended:

(A.) from the date the request is received bythe State; and

(B). to the date on which that information isprovided to Clepco by the State or theState gives a notice in accordance withparagraph (h)(iii).

(h) If:

(i) the State receives a written request inaccordance with paragraph (g)(iii); and

(ii) the information neither:

(A). is then available to the State, theGovernment Agency, the Nominee or theSubnominee; nor

(B). ought reasonably to have been availableto the State, the Government Agency, theNominee or the Subnominee,


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then:

(iii) the State must give Clepco written notice to thiseffect;

(iv) the State and Clepco must continue to complywith the requirements of clauses 4.15 to 4.32 inrespect of the relevant First State Notice orFurther State Notice; and

(v) as soon as the information does becomereasonably available to the State, theGovernment Agency, the Nominee or theSubnominee, the State must issue a FurtherState Notice in respect of that information andthe State and Clepco must then comply with therequirements of clauses 4.15 to 4.32 in respectof the Further State Notice.

(i) Where the State issues a Further State Notice inrespect of information provided to Clepco underparagraph (h)(v) the following timeframes will beamended for the purposes of clauses 4.15 to 4.32:

(i) clause 4.19(a) - the 20 Business Day timeframewill be 5 Business Days; and

(ii) clause 4.23 - the 10 Business Day timeframewill be 5 Business Days.

(j) Where the State issues a Further State Notice pursuantto paragraph (h)(v):

(i) which requires (having regard to theRelevant Interface Considerations) a change tothe measures being or to be implemented inaccordance with clauses 4.15 to 4.32; and

(ii) the Further State Notice or the informationdisclosed in the Further State Notice increasesthe imminent risk of property damage orpersonal injury in the Restricted Lease Area,

then the State, the Government Agency, the Nomineeor the Subnominee must suspend the construction ofthe building or structure in, or other use of, the StateAirspace to the extent that the Further State Notice orthe information disclosed in the Further State Noticeincreases the imminent risk of property damage orpersonal injury in the Restricted Lease Area until the


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relevant date in clause 4.25(d)(i), (ii) or (iii) occurs inrespect of the Further State Notice.

4.20 Further Clepco Responselxxxiiv

If:

(a) Clepco has given the State a First Clepco Response;and

(b) Clepco reasonably considers (having regard to theRelevant Interface Considerations) that there shouldbe any change to the measures for minimising theadverse effect which:

(i) the construction of any building or structure in,or other use of, the State Airspace; or

(ii) the access to the Restricted Lease Area requiredunder clause 4.16(a)(ii),

would (or in the reasonable view of Clepco could)have on Clepco's use (in accordance with this Deed)of the Restricted Lease Area, notified in a First ClepcoResponse or Further Clepco Response,

then:

(c) Clepco may provide the State with a further notice("Further Clepco Response") setting out thechanges to the measures proposed and the reasons forthe changes; and

(d) if:

(i) Clepco has not given consent to the measuresunder clause 4.19(b)(i) or (b)(iii)(A) or(d)(i)(A) or (d)(i)(C)(3), the parties have notreached agreement as to the measures underclause 4.22 and the period for agreement underclause 4.23 has not expired - regard may be hadto that Further Clepco Response in thenegotiations under clause 4.22 or thedetermination of the expert referred to in clause4.23; or

(ii) subparagraph (i) does not apply - clause 4.26(c)will apply.

4.21 Consent to Access to Restricted LeaseArea/Measureslxxxiiiv


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(a) Subject to paragraph (b), if, in a First ClepcoResponse, Clepco gives consent (whether in whole orin part) to:

(i) access and measures in accordance with clause4.19(b)(i) or (b)(iii)(A), then:

(A.) the State, Government Agency, Nomineeor Subnominee (as the case may be) mayhave access to the Restricted Lease Areato the extent of the consent; and

(B.) the State, Government Agency, Nomineeor Subnominee (on the one hand) andClepco (on the other hand) must carry outor procure the carrying out of themeasures to the extent of the consent; or

(ii) measures in accordance with clause4.19(d)(i)(A) or (d)(i)(C)(3), then the State,Government Agency, Nominee or Subnominee(on the one hand) and Clepco (on the otherhand) must carry out or procure the carrying outof the measures to the extent of the consent.

(b) If consent is given by Clepco under clause4.19(b)(iii)(A) or (d)(i)(C)(3) to access or measuresinvolving full closure in excess of the period referredto in clause 4.26(e), then the access must not be had orthe measures must not be carried out unless the Stategives Clepco written confirmation that the full closureis to occur.

4.22 Negotiation of Access to Restricted LeaseArea/Measureslxxxviv

If, in a First Clepco Response, Clepco:

(a) withholds consent (whether in whole or in part) toaccess and measures in accordance with clause4.19(b)(ii) or (b)(iii), then the State and Clepco mustnegotiate in good faith in an endeavour to agree:

(i) the access to the Restricted Lease Area whichthe State, Government Agency, Nominee orSubnominee requires;

(ii) the measures which the State, GovernmentAgency, Nominee or Subnominee (on the onehand) and Clepco (on the other hand) arerequired to implement; and


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(iii) the other conditions which Clepco requires tobe imposed upon the access to the RestrictedLease Area,

having regard to the Relevant InterfaceConsiderations; or

(b) either:

(i) withholds consent (whether in whole or in part)to measures, and proposes reasonablealternative measures, in accordance with clause4.19(d)(i)(B);

(ii) withholds consent to the measures proposed orrequired (as the case may be) under clause4.19(d)(i)(C); or

(iii) proposes measures in accordance with clause4.19(d)(ii),

then the State and Clepco must negotiate in good faithin an endeavour to agree the measures which the State,Government Agency, Nominee or Subnominee (on theone hand) and Clepco (on the other hand) are requiredto implement having regard to the Relevant InterfaceConsiderations.

4.23 Determination of Access to Restricted LeaseArea/Measureslxxxvii

If the State and Clepco do notagreenot agree the access,measures or conditions under clause 4.22(a) or the measuresunder clause 4.22(b) within 10 Business Days of the date theState receives the First Clepco Response, then:

(a) any party may refer the dispute or difference forexpert determination under clause 16 in which eventthe parties agree that the expert will determine (to theextent not agreed):

(i) in the case of failure to agree under clause4.22(a):

(A.) the access to the Restricted Lease Area towhich the State, Government Agency, theNominee or Subnominee is entitled;

(B.) the measures which the State,Government Agency, Nominee orSubnominee (on the one hand) and


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Clepco (on the other hand) is required toimplement; and

(C.) the conditions on access to the RestrictedLease Area which Clepco is entitled tohave imposed; or

(ii) in the case of failure to agree under clause4.22(b) - the measures which the State,Government Agency, Nominee or Subnominee(on the one hand) and Clepco (on the otherhand) is required to implement,

having regarding to:

(iii) the Relevant Interface Considerations;

(iv) the First State Notice and any Further StateNotice; and

(v) the First Clepco Response and any FurtherClepco Response to which the expert may haveregard in accordance with clause 4.20(d)(i);

(b) it is the intention of the parties that an expertappointed to determine the dispute must have atechnical understanding of the issues in contest; and

(c) the parties agree that:

(i) clause 16.2(c)(ii) and (iii) will not apply, if thedispute or difference is not referred for expertdetermination under clause 16, but the Statemay elect to provide Clepco with (or procurethe provision to Clepco of) a Further StateNotice under clause 4.18, in relation to theaccess, measures or conditions not agreed underclause 4.22(a) or the measures not agreed underclause 4.22(b); and

(ii) for the purposes of the resolution of any disputeor difference referred to an expert inaccordance with this clause 4.23, thedetermination of the expert will be in writingand will be final and binding on each party, andis to be given effect to by the parties, and clause16.5 will not apply to that determination.

4.24 Parties to Give Effect to Agreement as to Access toRestricted Lease Area/Measureslxxxviii

If the State and Clepco agree:


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(a) any access, measures and conditions under clause4.22(a), then:

(i) the State, Government Agency, Nominee orSubnominee (as the case may be) may haveaccess to the Restricted Lease Area to the extentof the agreement; and

(ii) the State, Government Agency, Nominee orSubnominee (on the one hand) and Clepco (onthe other hand) must carry out or procure thecarrying out of the measures to the extent of theagreement,

subject to any conditions agreed by the State andClepco under clause 4.22(a)(iii); and

(b) any measures under clause 4.22(b), then the State,Government Agency, Nominee or Subnominee (on theone hand) and Clepco (on the other hand) must carryout or procure the carrying out of the agreedmeasures.

4.25 General Matterslxxixvii

(a) Clepco:

(i) must co-operate with the State, all relevantGovernment Agencies, Nominees andSubnominees by providing such access to theESEP Land as is reasonably required inaccordance with clauses 4.15 to 4.32;

(ii) must not unreasonably withhold, delay orcondition its consent under clause 4.19(b) orwithhold or delay its consent under clause4.19(d) in respect of a First State Notice orFurther State Notice;

(iii) will be deemed to have given its consent underclause 4.19(b)(i) or 4.19(d)(i) for the purpose ofclause 4.21 if it fails to give a First ClepcoResponse within the 20 Business Day periodcalculated in accordance with clause 4.19 of thedate of the First State Notice or Further StateNotice provided that if the matters to whichClepco would be deemed to have given itsconsent under this subparagraph (iii) wouldinvolve a full closure resulting in the periodreferred to in clause 4.26(e) being exceeded,then that consent will be deemed to be a consent


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to the full closure to the extent only that it willnot result in that period being exceeded; and

(iv) must enter into such agreements, on such termsas are consistent with clauses 4.15 to 4.32, withthe State or any relevant Government Agency,Nominee or Subnominee in relation to access tothe Restricted Lease Area required to beprovided by Clepco in accordance with clauses4.15 to 4.32 or otherwise in relation to theconstruction of a building or structure in, orother use of, the State Airspace which wouldadversely affect Clepco's use (in accordancewith this Deed) of the Restricted Lease Area.

(b) The State must at all times co-operate (and procurethe relevant Government Agencies, Nominees andSubnominees to co-operate) with Clepco in engagingin the procedures contemplated by clauses 4.15 to4.32 including in providing the First State Notice,implementing measures and providing information toClepco.

(c) Subject to this Deed, the City Link Concession Deed,the IFA, the Project Legislation and section 56B ofthe Transport Act, but without limiting clauses 4.15 to4.32, Clepco acknowledges the State's andGovernment Agencies' rights to:

(i) use, occupy, develop, carry out constructionwork or repair and maintenance work in,encumber, sell, lease or otherwise deal with theState Airspace; and

(ii) grant rights to Nominees (and throughNominees to Subnominees) to use, occupy,develop, carry out construction work or repairand maintenance work in, encumber, sell, leaseor otherwise deal with the State Airspace,

for any purpose whatsoever.

(d) Where the construction of any building or structure in,or other use of, the State Airspace would adverselyaffect Clepco's use (in accordance with this Deed) ofthe Restricted Lease Area, then the construction of thebuilding or structure in, or other use of, the StateAirspace must not, to the extent that it would causethat adverse effect, commence in the State Airspace:


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(i) until (and to the extent that) Clepco consents tothe measures in accordance with clause4.19(d)(i)(A) or (d)(i)(C)(3);

(ii) until (and to the extent that), if Clepco does notconsent as referred to in subparagraph (i), theState and Clepco agree the relevant measures inaccordance with clause 4.22(b); or

(iii) if the State and Clepco cannot agree as referredto in subparagraph (ii), until the date of thedetermination of the expert made or purportedto be made in accordance with clause 4.23.

(e) Clepco:

(i) warrants that it will not at any time take (orprocure, assist or allow any person to take) anysteps or actions to injunct or otherwise restrainthe State, a Government Agency, a Nominee ora Subnominee from constructing any buildingor structure in, or other use of, the StateAirspace other than to the extent that:

(A.) the construction of the relevant part ofthe building or structure in, or other useof, the State Airspace has commenced:

(1) before the relevant time stated inparagraph (d); or

(2) without the State having given aFirst State Notice (where required byclause 4.15 to do so) or otherwisecomplied with the requirements ofclauses 4.15 to 4.32 (to the extentrequired by clauses 4.15 to 4.32 todo so); or

(B.) the State, Government Agency, Nomineeor Subnominee (as the case may be) isnot complying with the measures withwhich it is required to comply underclause 4.21(a)(i)(B) or (a)(ii), 4.23(c)(ii),4.24 or 4.26(d); and

(ii) will indemnify the State, the relevantGovernment Agency, Nominee or Subnomineefor any cost, expense, loss, damage or liabilityarising out of or in connection with any breachof the warranty under subparagraph (i).


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(f) If, from time to time, the State requires any change to:

(i) the access or the measures for minimisingthe adverse effect of such access; or

(ii) the measures for minimising the adverse effectof the construction in, or other use of, the StateAirspace,

to which Clepco has given consent under clause4.19(b)(i) or (b)(iii)(A) or 4.19(d)(i)(A) or(d)(i)(C)(3) or the parties have agreed under clause4.22 or determined by an expert referred to in clause4.23, then:

(iii) the State may provide Clepco with (or procurethe provision to Clepco of) a notice setting outthe changes proposed and the reasons for thechanges ("State Change Notice"); and

(iv) the State and Clepco must negotiate in goodfaith in an endeavour to agree to any suchchanges reasonably required (having regard tothe Relevant Interface Considerations) by theState Change Notice.

(g) The State and Clepco acknowledge that, for thepurposes of clause 9.4(c), the State is deemed to havegiven its prior approval to any use of:

(i) the Exhibition Street Extension or any part of itfor any purpose other than public roads; or

(ii) any of Clepco's property used to facilitate orenable the operation, maintenance or repair ofthe Exhibition Street Extension, or any part of it(including the Tolling System) for any otherpurpose,

to the extent required by the access, measures orconditions consented to under clause 4.19, agreedunder clause 4.22 or determined by the expert referredto in clause 4.23.

4.26 Minimising Disruptionlxxxviii

(a) Where the State, a Government Agency, a Nominee ora Subnominee (as the case may be) has access to theRestricted Lease Area in connection with theconstruction of a building or a structure in, or otheruse of, the State Airspace, the State must ensure (ormust procure the relevant Government Agency,


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Nominee or Subnominee, as the case may be, toensure) that disruption to Clepco's use (in accordancewith this Deed) of the Restricted Lease Area isminimised (other than to the extent consented to in aFirst Clepco Response or Further Clepco Response,otherwise agreed between the parties under clause4.22 or determined by the expert referred to in clause4.23).

(b) Where the State, a Government Agency, a Nominee ora Subnominee (as the case may be) constructs abuilding or structure in, or otherwise uses, the StateAirspace, the State must take (or must procure therelevant Government Agency, Nominee orSubnominee, as the case may be, to take) reasonablesteps to minimise disruption to Clepco's use (inaccordance with this Deed) of the Restricted LeaseArea, having regard to the nature of the constructionof the building or structure or other use (other than tothe extent consented to in a First Clepco Response orFurther Clepco Response, agreed between the partiesunder clause 4.22 or determined by the expert referredto in clause 4.23).

(c) If clause 4.20(d)(ii) applies, the State and Clepco:

(i) must negotiate in good faith in an endeavour toagree to any reasonable (having regard to theRelevant Interface Considerations) measuresproposed in the relevant Further ClepcoResponse for minimising the disruption whichthe access to the Restricted Lease Area orconstruction of any building or structure in, orother use of, the State Airspace would cause toClepco's use (in accordance with this Deed) ofthe Restricted Lease Area; and

(ii) acknowledge and agree that a failure to agreeany measures under subparagraph (i) will notconstitute a dispute or difference entitling eitherparty to refer the matter for resolution underArticle 16 or to make any other Claim againstthe other party in respect of a failure to agreeany measures under subparagraph (i) (otherthan where that failure is the other party'sfailure to negotiate in good faith as requiredunder subparagraph (i), in which event a partymay claim any damages to which it would beentitled at law).


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(d) If the State and Clepco agree measures underparagraph (c), then the State, Government Agency,Nominee or Subnominee (on the one hand) andClepco (on the other hand) must carry out or procurethe carrying out of the measures to the extent of theagreement.

(e) The State acknowledges that it may not, in a FirstState Notice, a Further State Notice or an UrgentNotice:

(i) require access to the Restricted Lease Area; or

(ii) propose, or set out a work method statementwhich would reasonably (having regard to theRelevant Interface Considerations) require(regardless of whether measures have beenproposed), measures to be implemented by theState, Government Agency, Nominee orSubnominee (on the one hand) and Clepco (onthe other hand) for minimising the adverseeffect which the access sought to the RestrictedLease Area or the construction of a building orstructure in, or other use of, the State Airspacewould have on Clepco's use (in accordance withthis Deed) of the Restricted Lease Area,

which would require a full closure for a period (oraggregate of periods in any period of 12 months) inexcess of 20 closure units where:

(iii) "full closure" means the closure of either all ofthe inbound lanes or all of the outbound lanes(or both) of the Exhibition Street Extension inthe Restricted Lease Area;

(iv) "partial closure" means any closure of theExhibition Street Extension in the RestrictedLease Area which is not a full closure; and

(v) "closure units" are calculated as follows:

(A.) full closure for any continuous full periodfrom 7am to 7pm on any day betweenMonday and Friday inclusive equals twoclosure units;

(B.) full closure for any continuous full periodfrom 7am to 7pm Saturday or Sundayequals one closure unit;


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(C.) full closure for any continuous full periodfrom 7pm to 7am equals one closure unit;and

(D.) full closure for any part of a periodreferred to in subsubparagraph (A), (B),or (C) equals a proportional part of thenumber of closure units referred to insubsubparagraph (A), (B) or (C) (as thecase may be).

(f) The parties acknowledge that there is no restriction onthe period of partial closure (as defined in paragraph(e)(iv)) which may be required in relation to:

(i) the construction of a building or structure in, oruse of, the State Airspace; or

(ii) access to the Restricted Lease Area inconnection with the:

(A.) construction, operation, maintenance orrepair of any building or structure in; or

(B.) other use of,

the State Airspace,

by the State, a Government Agency, a Nominee orSubnominee.

4.27 State Indemnitylxxxix

(a) Subject to clauses 4.28 and 4.29 the State shallindemnify and keep Clepco indemnified from andagainst:

(i) each of:

(A.) additional construction costs properlyand reasonably suffered, incurred orpayable by or on behalf of Clepco inrespect of the Exhibition StreetExtension;

(B). additional operating costs properly andreasonably suffered, incurred or payableby or on behalf of Clepco in respect ofthe Exhibition Street Extension;

(C.) any loss of tolling revenue by Clepco inrespect of the Exhibition StreetExtension; and


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(D.) any claim, demand, damage, expense,loss or liability brought against orsuffered, incurred or payable by or onbehalf of Clepco in respect of loss ordestruction of or damage to real orpersonal property or injury to or diseaseor death of a person ("property damageor personal injury"),

to the extent to which such cost, loss, propertydamage or personal injury is caused, whetherdirectly or indirectly, by:

(E.) the construction of a building or structurein, or use of, the State Airspace; or

(F.) access to the Restricted Lease Area inconnection with:

(1) the construction, operation,maintenance or repair of anybuilding or structure in; or

(2) other use of,

the State Airspace,

by the State, a Government Agency, a Nomineeor a Subnominee; and

(ii) the costs properly and reasonably incurred by oron behalf of Clepco in:

(A.) preparing a First Clepco Response; and

(B.) in carrying out the measures to be carriedout by Clepco under clause 4.21(a)(i)(B)or (a)(ii), 4.23(c)(ii), 4.24(a)(ii) or (b) or4.26(d).

(b) If Clepco requires to be indemnified under this clause4.27, then Clepco must give the State a written claimsetting out:

(i) the amount against which Clepco is seeking tobe indemnified under this clause 4.27; and

(ii) calculations and supporting documentation andother information sufficient to show clearly theamount claimed and the basis for the claimunder this clause 4.27 and to enable verificationby the State.


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4.28 Exclusions from and Reductions in State Indemnitylxcxxii

The indemnity in clause 4.27 excludes any cost, loss,property damage or personal injury, to the extent that suchcost, loss, property damage or personal injury was caused(whether directly or indirectly) by:

(a) an act or omission of the Company, Clepco or anominee or agent, unless (subject to paragraph (b)) therelevant act or omission was reasonably necessary as aresult of:

(i) the construction of a building or structure in, orother use of, the State Airspace; or

(ii) access to the Restricted Lease Area inconnection with the:

(A.) construction, operation, maintenance orrepair of a building or structure in; or

(B.) other use of,

the State Airspace,

by the State, a Government Agency, a Nominee or aSubnominee; or

(b) a negligent, reckless, unlawful or otherwise wrongfulact or omission, breach of this Deed or any otherProject Document (in either case unless it is requiredof Clepco in accordance with clauses 4.15 to 4.32) orany default of the Company, Clepco, or a nominee oragent.

4.29 Duty to Mitigatelxcxxiii

(a) Clepco must take (or procure the taking on its behalfof) all reasonable steps to mitigate any cost, loss,property damage or personal injury against which it isentitled to be indemnified under clause 4.27.

(b) Where steps to mitigate are taken by or on behalf ofClepco in response to an Urgent Notice, indetermining whether those steps were reasonable,regard should be had to the time when the relevantnotice was given and the Relevant InterfaceConsiderations.

4.30 Release and Promise not to SuexciiSuelxxxiv

(a) Clepco releases and agrees not to sue the State, allrelevant Government Agencies, all Nominees and all


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Subnominees in respect of any Claim (whetherexisting as at the Operative Date (as defined in theESEP Sixth Amending Deed) of the ESEP SixthAmending Deed or which comes into existencethereafter):

(i) in respect of:

(A.) the construction of any building orstructure built or to be built in, or theother use of, the State Airspace; or

(B.) the State's, the relevant GovernmentAgency's, any Nominee's orSubnominee's access to the RestrictedLease Area; and

(ii) for:

(A.) additional construction costs suffered,incurred or payable by or on behalf ofClepco in respect of the Exhibition StreetExtension;

(B.) additional operating costs suffered,incurred or payable by or on behalf ofClepco in respect of the Exhibition StreetExtension;

(C.) any loss in tolling revenue in respect ofthe Exhibition Street Extension;

(D.) any property damage or personal injury;

(E.) costs incurred by or on behalf of Clepcoin preparing a First Clepco Response orin carrying out measures under clauses4.21(a)(i)(B) or (a)(ii), 4.23(c)(ii),4.24(a)(ii) or (b) or 4.26(d); or

(F.) any other cost, loss, damage, injury orliability,

(iii) other than for:

(A.) claims by Clepco against the State forindemnification in accordance withclause 4.27; or

(B.) subject to paragraph (b):

(1). claims by Clepco against the Stateunder clause 2.9; or


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(2). claims by Clepco against the Statefor damages for breach of contractfor breach of clauses 4.15 to 4.32.

(b) For the purposes of paragraph (a)(iii)(B), the partiesacknowledge that Clepco may only make a claimreferred to in paragraph (a)(iii)(B) if, and to the extentthat, it is not:

(i) in respect of:

(A.) additional construction costs suffered,incurred or payable by or on behalf ofClepco in respect of the Exhibition StreetExtension;

(B.) additional operating costs suffered,incurred or payable by or on behalf ofClepco in respect of the Exhibition StreetExtension;

(C.) any loss of tolling revenue by Clepco; or

(D.) any property damage or personal injury,

caused, whether directly or indirectly, by:

(E.) the construction of a building or structurein, or use of, the State Airspace; or

(F.) access to the Restricted Lease Area inconnection with:

(1) the construction, operation,maintenance or repair of anybuilding or structure in; or

(2) other use of,

the State Airspace,

by the State, a Government Agency, a Nomineeor a Subnominee; or

(ii) in respect of costs incurred by or on behalf ofClepco in:

(A.) preparing a First Clepco Response; or

(B.) in carrying out the measures to be carriedout by Clepco under clause 4.21(a)(i)(B)or (a)(ii), 4.23(c)(ii), 4.24(a)(ii) or (b) or4.26(d).


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(c) The State and Clepco each declare and acknowledgethat the indemnity given under clause 4.25(e) and therelease and agreement not to sue given under thisclause 4.30 in favour of all relevant GovernmentAgencies, all Nominees and all Subnominees are heldon trust by the State for the benefit of all relevantGovernment Agencies, all Nominees and allSubnominees from the Operative Date (as defined inthe ESEP Sixth Amending Deed) of the ESEP SixthAmending Deed.

4.31 Adjusted timeframeslxciiixxv

(a) Either party may at any time by written notice to theother party:

(i) request the timeframes (other than thetimeframes relating to the expert determinationreferred to in clause 4.23) under clauses 4.15 to4.32 (or any of them) to be expedited orextended; and

(ii) set out the proposed reasonable expedited orextended timeframes.

(b) If a request is made by a party in accordance withparagraph (a), then:

(i) the other party must not unreasonably withholdor delay its consent to the expedited orextended timeframes provided that a party is notobliged to consent to an expedited or extendedtimeframe if it represents an adjustment of morethan the greater of 5 Business Days or 25% ofthe original timeframe; and

(ii) once consent is obtained under subparagraph(i), the parties must comply with thoseexpedited or extended timeframes indischarging their obligations under clauses 4.15to 4.32.

(c) The parties may, from time to time, enter into writtenagreements that expedite or extend the timeframesunder clauses 4.15 to 4.32.

4.32 Interpretationxclxxxviv

For the purposes of clauses 4.15 to 4.32:

(a) "Claim" means any claim:


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(i) under the ESEP Deed; or

(ii) otherwise at law or in equity.

(b) "ESEP Sixth Amending Deed" means the deed soentitled made between the parties to this Deedpursuant to which amendments were effected to thisDeed.

(c) "measure" includes arrangements for trafficmovements, full closures, partial closures, measures toensure the health and safety of users of the ExhibitionStreet Extension, scaffolding, signage, constructiontechniques and structures used to facilitate access toand construction within the State Airspace, accessprotocols, work permits from Clepco or itscontractors, insurance, performance measures,appropriate advertising and equipment.

(d) "negotiate in good faith in an endeavour to agree"includes convene such meetings of the representativesof the parties, exchange such documents and otherinformation and obtain such assistance fromconsultants and other third parties as may be requiredfor the purpose of agreeing the relevant matters.

(e) "Nominee" means a third party developer,construction contractor or operator with whom theState or a Government Agency enters into anagreement for the construction or use of a newbuilding or structure in the State Airspace.

(f) "Relevant Interface Considerations" means:

(i) the health and safety of users of the RestrictedLease Area;

(ii) minimising the cost and disruption arising outof having the relevant access, implementing therelevant measures and complying with therelevant conditions to all parties;

(iii) facilitating the State's right to construct,operate, maintain or repair buildings orstructures in or otherwise use the State Airspacein a timely manner, but having regard to the factthat:

(A.) it will be in the context of construction,operation, maintenance or repair in, or


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use of, airspace above the ExhibitionStreet Extension; and

(B.) the Exhibition Street Extension is anintegrated part of Melbourne's roadsystem;

(iv) the reasonable measures and conditions whichhave been or would be implemented or imposedin the context of construction in or use ofairspace above other roads in Melbourne;

(v) the requirements of clauses 4.15 to 4.32 of thisDeed;

(vi) ensuring (in the exercise by the parties of theirrights and the discharge by the parties of theirobligations under clauses 4.15 to 4.32)compliance with the terms of the insuranceswhich Clepco is required to have in place inaccordance with this Deed;

(vii) ensuring (in the exercise by the parties of theirrights and the discharge by the parties of theirobligations under clauses 4.15 to 4.32)compliance with requirements of all relevantLaw.

(g) "Restricted Lease Area" is Crown Allotment 3A

Section 28 and Crown Allotment 5A Section 19E

Parcel 18 as shown on the registered plan numberedOP 121217-A.

(h) "State Airspace" is the airspace directly above thatpart of Crown Allotment 3A Section 28 that has aheight restriction of 5.4 metres above the roadpavement, and the airspace directly above CrownAllotment 5A Section 19E Parcel 18, as shown on theregistered plan numbered OP 121217-A.

(i) "Subnominee" means a third party (regardless of howfar removed from the State) developer, constructioncontractor or operator with whom a Nominee orSubnominee enters into an agreement for theconstruction or use of a new building or structure inthe State Airspace.

5. PLANNING SCHEME REQUIREMENTS ANDREMEDIATION

5.1 PSA


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Clepco shall comply with:

(a) the requirements of the PSA in all respects, insofar asthose requirements relate to ESEP Land or theExhibition Street Extension; and

(b) all requirements, recommendations or decisions madeby a responsible Minister of the State in accordancewith the PSA, insofar as those requirements,recommendations or decisions relate to ESEP Land orthe Exhibition Street Extension.

5.2 Liability for Remediation

(a) Subject to clause 12.7, Clepco shall comply (and shallensure that each of its Contractors complies) with anyclean-up notice issued after Delivery (for this purposeclause 8.2(h)(ii) shall not apply) to it under section62(A)(1) of the Environment Protection Act or anysimilar notice in relation to any of the ESEP Land.

(b) The following will satisfy the obligations of Clepcounder paragraph (a), either:

(i) the issue of a certificate of environmental auditunder the Environment Protection Act statingthat the condition of the segment of theenvironment constituted by the area of ESEPLand to which the certificate relates is not or isnot potentially detrimental to any beneficial useof that segment of the environment; or

(ii) the issue of a statement of environmental auditunder the Environment Protection Act statingthat the condition of the segment of theenvironment constituted by the area of ESEPLand to which the statement relates is not or isnot potentially detrimental to a particularbeneficial use of that segment which isconsistent with the proposed use of the ESEPLand by Clepco.

(c) Clepco acknowledges its obligations at Law are notlimited by the provisions of this clause or clause 12.7.

6. NOT USED

7. DESIGN AND CONSTRUCTION

7.1 Design—Exhibition Street Extension

(a) Clepco represents and warrants that:


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(i) no representation or warranty has been given oris given by or on behalf of the State, anyGovernment Agency or Utility or anyone forwhom it or a Government Agency or Utility isresponsible as to the suitability, completenessor efficacy of any information or data suppliedor made available by any of them on or beforethe date of this Deed, being information or data:

(A) forming part of the ESEP O & MRequirements;

(B) which relates to the capacity or adequacyof the Exhibition Street Extension tocarry or service any particular volume orflow of traffic;

(C) which relates to the level of usage of theExhibition Street Extension;

(D) which relates to the impact of theExhibition Street Extension on the levelof usage of any other road or roads; or

(E) which relates to the cost of operation,maintenance or repair of the ExhibitionStreet Extension; and

(ii) it has made its own review and evaluation of thesuitability and accuracy of that information ordata referred to in this clause without relianceon the State, any Government Agency orUtility.

(b) Subject to clause 8.3, Clepco agrees that if theExhibition Street Extension Works are Delivered,such Delivery will not preclude, limit or otherwisequalify the ability of Clepco to perform its obligationsor exercise its rights under the ESEP ProjectDocuments or the nature, extent or value of its rightsor entitlements under the ESEP Project Documentsand the State will have no further liability in thisrespect.

7.2 Traffic Investigations

As between the parties, Clepco shall bear absolutely all riskshowsoever they may arise (whether directly or indirectly andwhether as a result of negligence or otherwise) as a result ofthe use of any traffic investigations used by Clepco or any


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Contractor, undertaken or provided by others prior to thedate of this Deed.

7.3 Warranties Unaffected

Clepco shall not be relieved of any liability in respect of thewarranties in clause 7.1 because it has been obliged to adoptthe ESEP O & M Requirements.

7.4 Interference

(a) Without limitation to clause 4.11 and 4.13, Clepcoshall not, and shall ensure that the Contractors shallnot, interfere with the flow of traffic on roadways inthe vicinity of the ESEP Land unless it is reasonablynecessary to do so for the purposes of the ESEPProject and:

(i) it has notified the State, VicRoads and anyrelevant municipal governing body of the:

(A) nature and approximate duration of anyproposed interference;

(B) arrangements proposed for trafficmovements (including minimisinginterference); and

(C) proposed arrangements for notifying thepublic; and

(ii) the State has approved those arrangements,which approval:

(A) may be subject to reasonable conditions;and

(B) shall not be unreasonably withheld ordelayed.

(b) After approval is given:

(i) subject to sub-paragraph (ii), Clepco shall carryout the arrangements in accordance with theapproval;

(ii) the State may carry out or procure the carryingout of the approved arrangements to the extentthat the approved arrangements requiremanagement of traffic or taking of othermeasures outside the ESEP Land.


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(c) Without limitation to clause 3.1(b), Clepco shall beresponsible for the cost of carrying out approvedtraffic arrangements under paragraph (b)(i).

7.5 Proprietary Documentation

(a) Clepco grants to the State an irrevocablenon-exclusive licence to use, and sub-license others touse, the Proprietary Documentation as it sees fit:

(i) for the purposes of or in connection with thesatisfaction by the State of its obligations underclause 8.3 or for the purposes of Delivery andoperating, maintaining and repairing theExhibition Street Extension (or a part of it); and

(ii) during such period as the State is entitled to orobliged to construct, operate, repair or maintainthe Exhibition Street Extension (or a part of it)or execute the Exhibition Street ExtensionWorks (or a part of them), under the ESEPProject Documents, and on and from the dateon which the Concession Period ends.

For the purpose of this paragraph (a) in consideringwhat constitutes Proprietary Documentation, thedefinition of Intellectual Property Rights shall bedeemed to include an express reference to "design andknow how".

(b) The State grants to Clepco an irrevocablenon-exclusive licence to use, and sub-licence others touse, the plans, drawings and specifications and otherdesign documentation comprising the As BuiltDrawings as it sees fit:

(i) for the purpose of operating, maintaining andrepairing the Exhibition Street Extension (orpart of it);

(ii) from the date of Delivery to the date on whichthe Concession Period ends.

(c) Promptly after it is requested by the State to do so butsubject to the rights of, and obligations owed to, thirdparties (including licensors) or owners of IntellectualProperty Rights and to the extent permitted by suchthird parties or owners and subject to paragraph (d),Clepco shall grant, or procure the grant, to the State orany nominee of the State specified in the request, anirrevocable non-exclusive licence to use, and


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sub-license others to use, the ProprietaryDocumentation as it sees fit for a specified use inVictoria (whether or not that use involves the State orany Victorian Government Agency).

(d) The non-exclusive licence granted under paragraph (c)does not include a licence of Intellectual PropertyRights listed in Exhibit Q to the City Link ConcessionDeed.

(e) Any request under paragraph (c) may be made fromtime to time.

(f) Any licence granted pursuant to a request underparagraph (c) must be:

(i) consistent with the provisions of this clause;and

(ii) on terms and conditions which arecommercially reasonable and which would beconsidered to be commercially reasonable, werethere to be a number of non-collusivecompetitive suppliers of the ProprietaryDocumentation.

(g) Any dispute which arises between the State andClepco in relation to the terms and conditions of alicence granted or to be granted in accordance withthis clause may be referred for expert determinationunder Article 16.

(h) This clause 7.5 does not apply to the Tolling System, other Relevant Systems, the CityLink Base IP and the CityLink Base Software.

7.6 Variations

(a) The State may request from Clepco information as to costs and other matters specified in the request in relation to a proposed Variation. At any time during the Concession Period, the State may direct Clepco to undertake a Variation by issuing a Variation Order in respect of the Exhibition Street Extension. The direction must include the terms on which the Variation is required to be undertaken and completed including:

(i) the amount payable to or by Clepco for the Variation, calculated in accordance with the Variation Principles;


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(ii) the time for completion of the Variation; and

(iii) any amendments to the Exhibition Street Extension, the ESEP Project Documents or any variations to any existing approval or permit or any new approval or permit to take into account the Variation,

which will be determined having regard to the procedures in this clause 7.6 or otherwise by the State acting reasonably.

(b) If the State issues a Variation Order then:

(i) subject to clause 7.6(d), Clepco must undertake the Variation on the terms set out in the Variation Order;

(ii) subject to clause 7.6(d), where the amount under clause 7.6(a)(i), is payable:

(b) As soon as practicable after receipt of a request from the State under paragraph (a), Clepco shall (so far as it is reasonably practicable to do so) provide the State with reasonably detailed particulars of:A) by the State to Clepco, Clepco will be entitled to payment of the amount for undertaking the Variation set out in the Variation Order; and

(i) its estimate of the costs of carrying out the proposed Variation including:

(A) all direct construction costs;

(B) all indirect or consequential construction or operating costs (including revenue reductions, losses or deferments and delay costs, finance costs and costs of amortisation of Project Debt); and

(C) the amount of Taxes payable by Clepco as a direct result of costs incurred by it in effecting the proposed Variation not being an allowable deduction under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 (noting that it shall use best endeavours


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to reduce any such amount as far as practicable, which may, for example, entail adopting an alternative structure for having the Variation implemented),

together "Variation Costs";

(ii) the effect (if any) of the proposed Variation upon traffic flow on the Exhibition Street Extension during the Concession Period; and

(iii) other relevant information related to carrying out the proposed Variation.

(c) The State may obtain from such third party as it sees fit (including the Independent Reviewer under the City Link Concession Deed):

(i) a report as to the Variation; and

(ii) other information it may require on any of the matters specified in sub paragraphs (b)(i) (excluding costs unrelated to construction costs), (b)(ii) (excluding costs of the relevant effects) and (b)(iii).

(d) Clepco shall not be required to, and shall not, begin work in respect of a Variation until such time as all relevant details of the Variation (including the Variation Costs and preconditions to and mechanisms for their payment) have been agreed between it and the State or have been determined in accordance with paragraph (e).

(B) by Clepco to the State, the State will be entitled to payment of the amount for undertaking the Variation set out in the Variation Order;

(iii) the ESEP Project Documents will be deemed to be amended in accordance with the relevant amendments set out in the Variation Order; and

(iv) Clepco must carry out its obligations under the ESEP Project Documents as amended in accordance with clause 7.6(b)(iii),

unless and until determined otherwise as a result of Clepco exercising its rights under clause 7.6(c).

(e) If the State wishes to dispute any of the particulars provided by Clepco relating to the proposed Variation


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(including the accuracy or reasonableness of its estimate of the Variation Costs and preconditions to and mechanisms for their payment) it may refer the disputec) Subject to clause 7.6(d), if Clepco disputes all or any part of the Variation Order, Clepco must continue to undertake the Variation described in the Variation Order (including the works or services the subject matter of any dispute) but may refer the matter for expert determination under Article 16.

(f) Following agreement between the parties or a determination in accordance with paragraph (e), the State may request Clepco to, and Clepco shall, carry out the Variation.d) If:

(g) The State shall pay to Clepco the Variation Costs of the Variation as agreed or determined under paragraph (d) or paragraph (e) in accordance with the mechanisms for, but subject to any preconditions to, payment agreed or determined in accordance with paragraph (d) or paragraph (e) (as the case may be).

(i) the State has issued a Variation Order; and

(ii) the effect of the Variation Order is subsequently revoked wholly or in part in accordance with section 15D(7) of the Project Legislation (Variation Revocation),

then:

(iii) on and from the date of Variation Revocation, Clepco is not obliged to continue to undertake the Variation described in the Variation Order to the extent of the Variation Revocation; and

(iv) the State must reimburse Clepco for:

(A) its actual costs properly and reasonably incurred prior to the date of the Variation Revocation;

(B) any amounts reasonably and properly incurred by Clepco as a direct result of the Variation Revocation to the extent Clepco had used its best endeavours to minimise such costs (including any redundancy payments);


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(C) the effect on the actual revenue of Clepco of implementing the Variation and any subsequent reinstatement; and

(D) its actual costs properly and reasonably incurred in reinstating the Exhibition Street Extension in accordance with the Variation Reinstatement Criteria to the state and condition that it was in immediately prior to the commencement of the works to undertake the relevant Variation (if any).

(e) Clepco must not begin any work or incur any cost, and will not have any entitlement to make any claim in respect of a Variation unless a Variation Order has been issued by the State in accordance with this clause 7.6.

(f) The State may, at any time, request Clepco to submit a Variation Quote for a proposed Variation which includes details of:

(i) the proposed Variation;

(ii) the State's preferred financing for the proposed Variation in accordance with the Variation Principles (where the Variation will result in an increase in cost to Clepco);

(iii) the State's preferred approach to how any savings (calculated in accordance with the Variation Principles) are to be passed on to the State (where the Variation will result in a decrease in the cost of the ESEP Project or the works, services, activities and function in connection with the ESEP Project); and

(iv) any specific information that the State requires Clepco to include or that may be relevant to the preparation of the Variation Quote,

(Variation Request).

(g) If Clepco is required to submit a Variation Quote and, prior to preparing a Variation Quote, Clepco:

(i) notifies the State that it needs to engage a third party other than a member of the Transurban Group (other than a member of the Transurban Group engaged on an arm's length basis and on


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commercial terms) to provide design, engineering or quantity surveying or other services reasonably required to be outsourced to assist in the preparation of a Variation Quote; and

(ii) provides details of the third party costs that will be incurred in preparing the Variation Quote calculated in accordance with the Variation Principles,

the State will either:

(iii) agree to pay Clepco the cost to prepare the Variation Quote calculated in accordance with the Variation Principles, in which case Clepco must proceed to prepare the Variation Quote; or

(iv) withdraw the Variation Request.

(h) If the State issues a Variation Request, Clepco must within 20 Business Days of the State agreeing to pay the costs referred to in clause 7.6(g)(iii) or at such later time as agreed by the State (acting reasonably, taking into account the size and complexity of the proposed Variation and the information to be included in the Variation Quote), provide the State with a Variation Quote prepared in accordance with the Variation Principles:

(i) containing reasonably detailed particulars of:

(A) its estimate of the amount that is payable by Clepco for undertaking the Variation, calculated in accordance with the Variation Principles;

(B) the time for completion of the Variation;

(C) the effect (if any) of the proposed Variation upon traffic flow on the Exhibition Street Extension during the Concession Period;

(D) the basis (if applicable) on which Clepco would be prepared to fund or to procure the funding of the whole or part of the Variation, and the cost difference if Clepco, rather than the State, were to fund the Variation (with such basis to be consistent with the Variation Principles);


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(E) any amendments to the Exhibition Street Extension, the ESEP Project Documents or the Proprietary Documentation, any variations to any existing approval or permit or any new approval or permit required for the Variation;

(F) any amendments to any relevant warranty given by Clepco under this Deed; and

(G) other relevant information requested by the State; and

(ii) be prepared so as to avoid or minimise:

(A) any adverse safety impacts of the Variation on people, the Exhibition Street Extension and performance of the obligations under this Deed; and

(B) the disruption to users of the Exhibition Street Extension.

The State must provide Clepco with further details reasonably requested to assist it in preparing its Variation Quote.

(i) Once Clepco has provided the State with the Variation Quote:

(i) the State may, at any time, request that Clepco carry out a tender process in respect of a Variation in accordance with the Variation Principles; and

(ii) Clepco must:

(A) provide the State with any additional information the State notifies that it reasonably requires to assess the Variation Quote;

(B) make any changes to the Variation which the State requests and with which it agrees; and

(C) upon receipt of a request under paragraph (i)(i), carry out a tender process in accordance with section 10 of the Variation Principles.

(j) [Not used].


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(jj) [Not used].

(k) Within 20 Business Days after receiving a Variation Quote or such longer period as the State reasonably requires given:

(i) the size and complexity of the proposed Variation; and

(ii) the need for any additional information not included in the Variation Quote and the time when it is subsequently provided,

the State must:

(iii) issue a Variation Order, in accordance with clause 7.6(b), to Clepco directing Clepco to carry out the Variation on the terms set out in the Variation Quote or as reasonably determined by the State, and Clepco must implement the Variation in accordance with the Variation Order and clause 7.6(b) will apply;

(iv) notify Clepco that it does not agree with the Variation Quote, including supporting documentation and reasons; or

(v) notify Clepco that it does not wish to proceed with the proposed Variation.

(kk) If the State issues a notice in accordance with clauses 7.6(i)(ii) or 7.6(k)(iv), Clepco must provide the State with an updated Variation Quote, addressing the issues raised by the State, within 10 Business Days of the receipt of the State's notice and clauses 7.6(i) or 7.6(k) (as applicable) will apply again to that Variation Quote.

(l) Clepco may, for its own convenience, request the State to direct a Variation by submitting a notice to the State which must:

(i) set out:

(A) the time for completion of the Variation;

(B) any amendments to the Exhibition Street Extension, the ESEP Project Documents or any variations to any existing approval or permit or any new approval or permit to take into account the Variation; and


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(C) the effect (if any) of the proposed Variation upon traffic flow on the Exhibition Street Extension during the Concession Period;

(ii) include the reason(s) for the proposed Variation;

(iii) contain a statement confirming the extent (if any) to which the proposed Variation will affect:

(A) any third parties who carry out works, services, activities and function in connection with the Exhibition Street Extension or adjacent to or in the vicinity of the Exhibition Street Extension; and

(B) the standards, warranties and other obligations with which Clepco is required to comply under this Deed; and

(iv) contain any other information and supporting documentation the State requests,

(Variation Proposal).

(m) Upon receipt of a Variation Proposal, clause 7.6(k) will apply as if the Variation Proposal was a Variation Quote and the State will be under no obligation to issue a Variation Order for the convenience of, or to assist Clepco.

(n) If the State issues a Variation Order as a result of a Variation Proposal, Clepco must undertake the Variation on the basis of the Variation Order and clause 7.6(b) will apply.

7.6A Streamlined Variations

(a) Without limiting the State's rights under clause 7.6, if the State (acting reasonably) considers that a Variation which the State intends to propose is minor, having regard to its scope, cost and timing implications, then it may issue to Clepco a notice titled "Streamlined Variation Proposal" setting out:

(i) an outline of the proposed Variation;


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(ii) an explanation of why the proposed Variation is minor, having regard to the factors referred to above; and

(iii) the streamlined process proposed by the State for agreeing the terms governing, and then implementing, the proposed Variation,

(Streamlined Variation Proposal).

(b) Within 7 Business Days after receipt of a Streamlined Variation Proposal, Clepco must (acting reasonably) provide the State with a notice which:

(i) accepts the Streamlined Variation Proposal; or

(ii) sets out the reasonable amendments to the Streamlined Variation Proposal required by Clepco.

(c) The State and Clepco will agree the terms governing, and then implement, Variations on the following basis:

(i) the terms of the Streamlined Variation Proposal where a Streamlined Variation Proposal is accepted under clause 7.6A(b)(i); or

(ii) the terms agreed between the State and Clepco, as recorded in an amended Streamlined Variation Proposal where Clepco seeks to amend a Streamlined Variation Proposal under clause 7.6A(b)(ii).

(d) If the State and Clepco fail to agree in accordance with clause 7.6A(c)(ii), the State may:

(i) issue a Variation Order under clause 7.6(a); or

(ii) issue a Variation Request under clause 7.6(f),

in order to implement the Variation.

7.7 ESEP Specification Changes

(a) Subject to paragraph (g), the State may at any timeinitiate or permit prior to Delivery, a change to theESEP Specification whether by way of one or moreformal variations under the ESEP ConstructionContract or otherwise.


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(b) The State will notify Clepco of each change to theESEP Specification made pursuant to paragraph (a) assoon as reasonably practicable after the change ismade. Any such notice shall be accompanied byreasonably detailed particulars of the relevant change.

(c) As soon as practicable after receipt of a notice underparagraph (b), Clepco will provide the State with:

(i) its estimate of any impact on the tolling revenueor operating expenses forecast in the Base CaseFinancial Model in relation to a change in theESEP Specification;

(ii) its estimate of any consequential impact on theContract Sum or any of the amounts in column3 of Schedule 2 and column 3 of Schedule 3(with those impacts being calculated as at theForecast Delivery Date using the Base CaseFinancial Model), together with reasonablydetailed particulars of the way in which itarrived at that estimate; and

(iii) details of any suggested amendments to theESEP O & M Requirements which it considersto be necessary as a result of the change orproposed change in the ESEP Specification.

(d) Unless otherwise agreed, an impact to be estimated byClepco under paragraph (c) shall be calculated by:

(i) changing the assumptions and information inthe Models to reflect the relevant change to theESEP Specification under paragraph (c) and theconsequences of it; and

(ii) adjusting the amount of the Contract Sum or anamount specified in column 3 of Schedule 2 orcolumn 3 of Schedule 3 (as applicable) to theextent necessary so that the results of operationof the Models, as amended, are consistent withthose of the Contract Sum Financial Criteria,pertinent to the relevant Model.

(e) If the State does not agree an estimate or a suggestedamendment provided by Clepco under paragraph (c)within 10 Business Days of the State's receipt of thatestimate or suggested amendment and the particularsrequired to accompany it, the State and Clepco shallbe deemed to be in dispute in relation to it. Either


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party may refer that dispute for expert determinationunder Article 16.

(f) For the purposes of this clause, the "Models" are theModels identified in the definition of "Contract SumFinancial Criteria".

(g) If the impact agreed or determined under this clause7.7 in relation to a change to the ESEP Specificationwould, if the State made the change, either:

(i) of itself, increase or reduce the amount of theContract Sum by an amount in excess of $15M;or

(ii) together with the effect of other changes to theESEP Specification made under this clause 7.7,result in an aggregate change of more than$15M in the amount of the Contract Sum,

then the change to the ESEP Specification may not bemade under this clause 7.7, unless the State andClepco agree in writing to its implementation.

7.8 Changes by Clepco

The State in its sole and unfettered discretion:

(a) may consider a request from Clepco for a change inthe ESEP O & M Requirements; and

(b) must promptly accept or reject any such change, and ifaccepted, on terms acceptable to the State.

7.9 ESEP Design Documentation

(a) The State must provide Clepco with copies of theESEP Design Documentation on a progressive basisas soon as reasonably practicable after it is producedpursuant to the ESEP Construction Contract.

(b) The State undertakes to ensure that the ESEP DesignDocumentation is consistent with the ESEPSpecification.

7A. CONSTRUCTION OF THE WEST GATE TUNNEL

7A.1 Construction of the West Gate Tunnel

On and from WGT Financial Close, the State:

(a) consents to and otherwise approves:


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(i) Clepco entering into the CLP WGT Project Documents;

(ii) [Not used];

(iii) changes to the Plant and Link Control Room;

(iv) WGT Co and its Associates (as defined in the WGT Project Agreement) undertaking the WGT Works;

(v) the granting of access to Exhibition Street Extension, any part of it or any of Clepco’s property to WGT Co and its Associates (as defined in the WGT Project Agreement); and

(vi) Clepco assuming and performing its other rights and obligations,

in each case in accordance with and as permitted by the CLP WGT Project Documents or the Project Documents (as defined under the WGT Project Agreement);

(b) [Not used];

(c) releases and waives any rights, and agrees not to bring any claim, action or other proceeding under the ESEP Project Documents in relation to:

(i) the performance of the WGT Works by WGT Co and its Associates (as defined in the WGT Project Agreement); and

(ii) the matters referred to in clause 7A.1(a);

(d) [Not used];

(e) [Not used];

(f) [Not used];

(g) [Not used]; and

(h) [Not used].

Except to the extent that the State has enforced the WGT State Security and assumed effective control of WGT Co, Clepco releases and agrees not to bring any claim against the State arising out of or in connection with the CityLink Returned Works to the extent performed by WGT Co.


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7A.2 WGT/CityLink Interface Letter

On and from WGT Financial Close, the State consents to and otherwise approves Clepco acting in accordance with the WGT/CityLink Interface Letter.

8. DELIVERY AND CONSTRUCTION

8.1 Delivery

(a) The State shall procure that Delivery occurs by theForecast Delivery Date. Clepco acknowledges,however, that a failure to procure this shall notconstitute a breach or give rise to a liability fordamages, noting that the amount of the Contract Sumis, in part, a function of when and if Delivery occurs.

(b) If Delivery has not occurred by the Sunset Date:

(i) the State shall pay to Clepco on that date anamount calculated in accordance with paragraph(c); and

(ii) with the exception of the State's obligationunder sub-paragraph (i), this Deed shallterminate.

(c) The amount payable by the State on the Sunset Dateshould Delivery not have occurred by that date is theamount specified in column 3 of Schedule 3 inrelation to the period in which that date occurs, as theamount so specified may have been adjusted:

(i) by agreement of the State and the Companyunder clause 3.2 of the Fourth Amending Deed;or

(ii) as a result of:

(A) the nature of the intersection of BatmanAvenue and Swan Street or the status ofBatman Avenue west of that intersectionbeing altered from that which, at the timeof the alteration, was contemplated in theESEP Specification or provided for in aprevious alteration for the purposes ofthis clause 8.1; or

(B) an event referred to in paragraph 3.4(c)(infrastructure bond funding),


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less the amount standing (or which would be standing,had each of the parties to the ESEP Contract SumPayment Directions Agreement other than the Stateobserved the terms of that agreement) to the credit ofthe Contract Sum Account (other than any ExcludedInterest) on the Sunset Date.xcvlxxxvii

(d) The State must notify Clepco of any alteration of thetype referred to in paragraph (c)(ii)(A) as soon asreasonably practicable after the alteration. Any suchnotice shall be accompanied by reasonably detailedparticulars of the relevant alteration and the expectedduration of that alteration. Any such notice is not tobe taken as a change to the ESEP Specification for thepurposes of this Deed.

(e) As soon as practicable after:

(i) its receipt of a notice from the State underparagraph (d); or

(ii) it becomes aware of, or receives notice from theState of, an event referred to in paragraph3.4(c),

Clepco shall provide the State with:

(iii) in the case of sub-paragraph (e)(i):

(A) its estimate of the impact on the tollingrevenue and operating expenses forecastin the Base Case Financial Model of therelevant alteration or relevant event (asapplicable); and

(B) its estimate of the adjustment to be madeto the amounts in column 3 of Schedule 3consequent upon that impact on tollingrevenue and operating expenses; and

(iv) in the case of sub-paragraph (e)(ii), its estimateof the adjustment to be made to the amounts incolumn 3 of Schedule 3,

together with reasonably detailed particulars of theway in which it arrived at those estimates.

(f) An impact and adjustment to be estimated by Clepcounder this clause 8.1 shall be calculated by:

(i) first, changing the assumptions and informationin the Models to reflect the relevant alteration


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or relevant event, and there being no Delivery,and the consequences of those things; and

(ii) secondly, adjusting the amount specified incolumn 3 of Schedule 3 to the extent necessaryso that the results of operation of the Models, asso changed, are consistent with those of theContract Sum Financial Criteria pertinent to therelevant Model; and

(iii) thirdly, if the adjustment is being made becauseof an event referred to in paragraph 3.4(c),decreasing the amount of that adjustment by50%.

(g) If the State does not agree an estimate provided byClepco under this clause 8.1 within 10 Business Daysof the State's receipt of that estimate and theparticulars required to accompany it, the State andClepco shall be deemed to be in dispute in relation toit. Either party may refer that dispute for expertdetermination under Article 16.

(h) For the purposes of this clause 8.1, the "Models" arethe models identified in the definition of "ContractSum Financial Criteria".

(i) If, at any time, the State considers that Delivery willnot occur by the then applicable Sunset Date, it may(but shall not be obliged to) nominate an earlier dateas the Sunset Date and, on any such nomination takingeffect, that earlier date shall then constitute the SunsetDate. A nomination under this paragraph (d) shalltake effect on expiry of 20 Business Days notice ofthat earlier date having been given by the State toClepco.

8.2 Delivery Process

(a) (i) The State shall ensure that Clepco is given atleast 20 Business Days notice of the date onwhich the State expects Delivery to occur.

(ii) During the period from receipt of a notice undersub-paragraph (a)(i) until the date which is 5Business Days after receipt of the documentsunder sub-paragraph (a)(iii), Clepco, theOperator and their respective nominees may atany time by prior arrangement with the Stateinspect the improvements on the ESEP Landwhich the State contends will form part of the


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Exhibition Street Extension. In so doing noparty may impede the execution of the ESEPConstruction Contractor's work.

(iii) Without delay after the issue of a certificate(s)of practical completion (or equivalent) underthe ESEP Construction Contract, the State shallprovide Clepco with a copy of each certificateof practical completion (or equivalent) otherthan for that part of the Exhibition StreetExtension Works referred to in paragraph (a)(i)of the definition of Delivery, to which clause8.8 might apply.

(iv) At least 10 Business Days prior to theanticipated date of delivery of any certificateunder sub-paragraph (iii), the State shallprovide Clepco with a copy of the final list ofdefects identified as part of the certificationprocess.

(b) Upon receipt of the list provided under sub-paragraph(a)(iv), without delay and at the latest within 5Business Days Clepco shall form an opinion as towhat (if any) remains to be performed in order forDelivery to occur.

(c) No later than 1 Business Day after forming an opinionunder paragraph (b), Clepco shall give notice to theState of its opinion under paragraph (b), including adetailed list of the work (if any) remaining to beperformed.

(d) If the State receives a notice under paragraph (c) itshall, in relation to each item of work specified in thenotice, either:

(i) procure that the work is performed as soon aspracticable; or

(ii) refer the subject matter of the notice insofar asit relates to the item for expert determinationunder Article 16.

(e) The State shall ensure that notice is given to Clepcoon completion of all items in the detailed list of workin Clepco's notice to which the election in paragraph(d)(i) applies and on completion of the work (if any)determined under Article 16 as remaining to beperformed in order for Delivery to occur in relation toeach item in the detailed list of work in Clepco's


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notice to which the election in paragraph (d)(ii)applies.

(f) Paragraphs (b), (c) and (d) will apply in respect of thenotice under paragraph (e).

(g) If a notice given under paragraph (c) provides that nowork remains to be performed in order for Delivery tooccur, the requirements of paragraph (b) of thedefinition of Delivery have been satisfied and Clepcohas been provided with a copy of each certificate ofpractical completion referred to in sub-paragraph(a)(iii), Clepco shall promptly issue to the State acertificate certifying that Delivery has occurred. IfClepco fails to give a notice under paragraph (c)within the period of time specified in that paragraph, acertificate to the above effect shall be deemed to havebeen issued at the expiration of that period of time.

(h) (i) On the date that a certificate is issued underparagraph (g) or is deemed to have issued underthat paragraph, Delivery will be taken to haveoccurred.

(ii) If, however, the certificate is issued on a datelater than the date it would have issued as aresult of Clepco specifying in a notice underparagraph (c) an item or items of work each ofwhich is determined under Article 16 not to berequired to be performed in order for Deliveryto occur, Delivery will be deemed to haveoccurred on the date the certificate would havebeen issued if Clepco had not so specified eachsuch item of work.

(i) The State shall keep the Project Coordination Groupestablished under clause 7.18 of the City LinkConcession Deed informed of progress in relation tothe Exhibition Street Extension Works and itsexpectation, from time to time, of the date on whichDelivery is likely to occur.

(j) The State will provide the As Built Drawings toClepco without delay after they become available tothe State.

(k) The State shall ensure that no change to the ESEPSpecification occurs later than 10 Business Days priorto the date of Delivery.

8.3 State Delivery Risks


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(a) The State shall procure that the Exhibition StreetExtension Works are executed:

(i) with due skill, care and diligence; and

(ii) using the materials and standards ofworkmanship required by the ESEPSpecification or, in the absence of anyrequirement to the contrary, suitable newmaterials and proper andtradesmanliketradesman like workmanship.

(b) (i) Subject to sub-paragraph (b)(ii), the defectsliability period of 12 months shall commence at4.00pm on the date that Delivery occurs.

(ii) If sub-paragraph 8.2(h)(ii) applies, the defectsliability period shall be the shorter of:

(A) 12 months from the date the disputeunder sub-paragraph 8.2(h)(ii) isresolved; and

(B) 18 months from the date on whichDelivery is deemed to occur undersub-paragraph 8.2(h)(ii).

(c) As soon as possible after the date that Deliveryoccurs, the State shall rectify any defects or omissionsin the Exhibition Street Extension Works existing onthe date that Delivery occurs but which did notprevent Delivery from being considered to haveoccurred. There shall be a separate defects liabilityperiod of 12 months in relation to the rectified workcommencing on the date the rectification works arecompleted.

(d) At any time during the defects liability period, Clepcomay direct the State to promptly rectify any omissionor defect in the Exhibition Street Extension Works forwhich the ESEP Construction Contractor isresponsible under the ESEP Construction Contract.The direction shall identify the omission or defect andstate a reasonable date by which the State shouldcomplete the rectification work and may state areasonable date by which the rectification work shallcommence. The direction may provide that in respectof the rectification work there shall be a separatedefects liability period of a stated duration notexceeding the period stated in paragraph (b). The


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separate defects liability period shall commence onthe date the rectification work is completed.Paragraphs (b)-(g) shall apply in respect of therectification work and the defects liability period forthat rectification work.

(e) If the rectification work is not commenced orcompleted by the stated dates, Clepco may have therectification work carried out at the State's expensebut without prejudice to any other rights that Clepcomay have against the State with respect to suchomission or defect. The reasonable cost of therectification work incurred by Clepco shall be a debtdue from the State to Clepco.

(f) If it is necessary for the State to carry out rectificationwork, the State will do so at times and in the mannerwhich cause as little inconvenience to the occupantsor users of the Exhibition Street Extension as isreasonably possible.

(g) Clepco shall ensure that the State and its nominees aregiven such access to ESEP Land as is reasonablyrequired in order to enable the State to observe itsobligations under paragraphs (c), (d) and (f).

8.4 O & M Manuals

Before Delivery (for this purpose clause 8.2(h)(ii) shall notapply) Clepco shall give to the State a copy of operation andmaintenance manuals prepared in accordance with the ESEPO & M Requirements and in a form approved in writing bythe State, such approval not to be unreasonably withheld.

8.5 ESEP ETTM Works Access

(a) Clepco shall notify the State of the date on whichClepco and its nominees require access to ESEP Landprior to Delivery (for this purpose clause 8.2(h)(ii)shall not apply) for the purposes of enabling Clepco toexecute the ESEP ETTM Works. That notice must begiven a reasonable time prior to that date and mustspecify the relevant date and the relevant part of theESEP Land to which the notice relates. The date andpart to be so specified in the notice must be no earlierand no larger (as applicable) than that which isreasonable having regard to the time during which andthe purpose for which it is proposed to exercise theaccess rights. The State shall provide or procure


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access for Clepco to the ESEP Land as stated inClepco's notice.

(b) The access rights granted under this clause 8.5 willcommence on the date notified by Clepco to the Stateunder clause 8.5(a) and continue until the date ofDelivery (for this purpose clause 8.2(h)(ii) shall notapply).

(c) Clepco shall ensure that the right of access grantedunder this clause 8.5 is exercised in a way which doesnot result in Exhibition Street Extension Works beingimpeded.

(d) Without limiting paragraph (c), Clepco shall ensurethat the right of access granted under this clause 8.5 isexercised so that it co-operates with those engaged inExhibition Street Extension Works including theco-ordination of the ESEP ETTM Works withExhibition Street Extension Works.

8.6 ESEP ETTM Works and PTC

(a) Clepco shall ensure that the design, execution,commissioning and completion of the ESEP ETTMWorks and the operation, maintenance and repair ofthe Exhibition Street Extension is undertaken in away:

(i) which is consistent with each PTC AdjacentWorks and Operations Requirement;

(ii) which minimises disturbance to the use of thePTC Land Access Area for the provision ofefficient, adequate, safe and reliable publictransportation services,

and shall, in any event, ensure that each PTC AdjacentWorks and Operations Requirement is observed.

(b) The State holds the benefit of the undertakings madeby Clepco made under this clause 8.6 on trust foritself and for the Public Transport Corporation, withthe intent that each of the State and the PublicTransport Corporation may enforce thoseundertakings. The consent of the Public TransportCorporation is not however, required for anyamendment or waiver affecting those undertakings orthe rights arising in relation to them.

8.7 Exhibition Street Extension Works


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(a) The State shall use best endeavours to procure that theconstruction of the Exhibition Street Extension Worksis performed in a way which does not result in theESEP ETTM Works being impeded.

(b) Without limiting paragraph (a), the State shall procurethat the Exhibition Street Extension Works areperformed so that the ESEP Construction Contractorco-operates with those performing the ESEP ETTMWorks, and co-ordinates the Exhibition StreetExtension Works with the ESEP ETTM Works. Forthe purpose of the second paragraph of clause 27.2 ofthe ESEP Construction Contract only, thoseperforming the ESEP ETTM Works will be deemed tobe persons engaged by the State.

8.8 Part C of ESEP Construction Contract

If Delivery has occurred without the execution of the workscomprising Part C under the ESEP Construction Contract(the "Part C Works"), then:

(a) the State will ensure that the Part C Works areexecuted within 3 weeks of the Completion of theSouthern Link (as each of those expressions is definedin the City Link Concession Deed);

(b) the provisions of clauses 8.2 and 8.3 will apply withthe necessary modifications and any time periodsrequired to be observed under clause 8.2 will betruncated to 1 Business Day;

(c) the State will execute the Part C Works in a mannerand at times which do not unduly disturb the efficientperformance of Clepco's obligations and the efficientexercise of its rights under this Deed and the Lease inrelation to the Exhibition Street Extension; and

(d) Clepco will be entitled to withhold the sum of$500,000 from the Contract Sum pending thecompletion of the process outlined in paragraph (b), atwhich time that amount will be paid to the State.

9. OPERATION

9.1 Compliance

(a) During the Concession Period, Clepco shall operatethe Exhibition Street Extension if it has commencedoperation, which must commence as soon aspracticable after the later of:


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(i) the date of Delivery (and for this purpose onlyclause 8.2(h)(ii) will not apply); andlxcxxviii

(ii) the date the Tolling System becomesoperational,

in accordance with the ESEP O & M Requirementsand the Operation and Maintenance Manuals.

(b) Clepco shall ensure that:

(i) the Operation and Maintenance Manuals,Emergency Management Plan, OperationsQuality Plan and Incident Management QualityPlan; and

(ii) all policies, plans, systems, manuals andprocedures referred to or incorporated in any ofthe documents referred to in subparagraph (i),

are subject to:

(iii) a program of ongoing review and amendmentduring the Concession Period, in accordancewith the ESEP O & M Requirements and in amanner consistent with the conduct of a GoodPractice Operator; and

(iv) in relation to the manuals and plans referred toin subparagraph (i), a complete review, to thestandard consistent with a Good PracticeOperator, no less than once every two yearsfrom the Operative Date (as defined in theESEP Seventh Amending Deed) of the ESEPSeventh Amending Deed.xcviilxxxix

(c) During the Concession Period, Clepco shall ensurethat the State is promptly provided with a written copyof, and any amendments to the Operation andMaintenance Agreement, Operation and MaintenanceManuals, Emergency Management Plan, OperationsQuality Plan and Incident Management QualityPlan.xcviiixc

9.2 Tolling System

(a) Clepco shall ensure that the Tolling System:

(i) does not impede the flow of traffic on theExhibition Street Extension;

(ii) operates so that vehicles can travel at speedsand in the manner as set out in the ESEP O &


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M Requirements, when entering, travellingalong and leaving the Exhibition StreetExtension without being required to slow downor stop; and

(iii) operates in a manner which conforms with thestandards and requirements either:

(A) as outlined in the ESEP O & MRequirements; or

(B) applied by Law from time to time.

Insofar as a standard or requirement undersub-paragraph (A) differs from one undersub-paragraph (B), the more onerous standard orrequirement shall prevail.

(b) Before the later of:

(i) the date of Delivery (and for this purpose onlyclause 8.2(h)(ii) will not apply); and

(ii) the date the Tolling System becomesoperational,xcix

Clepco shall submit details of the Tolling System tothe State for approval and obtain the State's approvalbefore Delivery (for this purpose clause 8.2(h)(ii)shall not apply). If those details reasonably establishthat by the use of reasonable endeavours, Clepcowould be able to comply with its obligations underparagraph (a) were the Exhibition Street Extension tohave commenced operation, the State shall notwithhold its approval.

(c) The State shall make a decision within 5 BusinessDays after the later of receipt of:

(i) a request for approval; or

(ii) any further particulars which the State may,within 5 Business Days of submission byClepco of the details referred to in paragraph(b), reasonably request of Clepco followingsubmission of the details required underparagraph (b).

(d) Clepco shall levy tolls in accordance with the TollCalculation Schedule and Clepco acknowledges that itintends (and the State acknowledges) that such tollsand any other revenue from activities approved under


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clause 9.4(c) shall constitute the source of revenue forthe ESEP Project.

(e) Subject to clauses 9.2(ea), 9.2(eb), 9.2(ec), 9.2(eg),9.2(i), 9.2(l), 9.2(la), 9.2A and 9.2B, Clepco shallensure that no fee or charge is levied or imposed, inaddition to tolls in relation to the Exhibition StreetExtension levied in accordance with the TollCalculation Schedule, in connection with anyagreement or arrangement providing for the levying,payment or recording of tolls unless:cxcii

(i) Clepco makes available to each person whowishes to use the Exhibition Street Extensionfor person or domestic purposes an arrangementproviding for certain services (includingregistration under Division 2 of Part 4 of theProject Legislation), incurring no fee or charge(other than under clauses 9.2(eb), 9.2(ec),9.2(i), 9.2(l), and 9.2(la)) as proposed fromtime to time by Clepco and which services havebeen approved by the State (such approval notto be unreasonably withheld or delayed);cixciii

(ii) the fee or charge is imposed in relation to aparticular mechanism or arrangement for thelevying, payment or recording of tolls or inrelation to enforcing such a mechanism orarrangement;

(iii) Clepco offers a reasonable range of tollpayment and recording mechanisms orarrangements (including for this purpose thearrangement referred to in paragraph (e)(i));and

(iv) the relevant fee or charge is reasonable havingregard to costs properly incurred by each of Clepco and WGT Co (but excluding profits ofClepco and WGT Co) in offering the particularmechanism or arrangement or in seeking toenforce such mechanism or arrangement, or isotherwise approved by the State.

Notwithstanding anything in this clause 9.2(e) or anyapproval provided by the State under subparagraph (i)prior to 1 May 2002, Clepco must not levy or imposeany fee or charge in respect of any of thecircumstances set out in clause 9.2(eb)(iii) and (iv) orthe costs (or any part of the costs) incurred by the


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Clepco of the type referred to in subparagraph (iv)arising out of or in connection with thosecircumstances other than the fee (if any) levied andimposed in accordance with clause 9.2(eb), unlessclause 9.2(ed) applies. ciixciv ciiixcv civxcvi cvxcvii

(ea) Clause 9.2(e) does not preclude a fee or charge beingimposed by the Public Transport Corporation inconnection with the use of the public transportationservices to which ESEP Ancillary Works andOperations relate.cvixcviii

(eb) Where Clepco satisfies clauses 9.2(e)(i) and9.2(e)(iii), then Clepco may, in connection with anagreement providing for the levying, payment orrecording of tolls, levy or impose a fee per Trip (inaccordance with the meaning of Trip in the TollCalculation Schedule as set out in Schedule 4 to theIFA) during:

(i) the period from 1 May 2002 to 30 June 2007(inclusive) – of not more than $1.20;

(ii) the period from 1 July 2007 to 30 June 2008(inclusive) – of not more than $0.90 (subjectto review pursuant to clause 9.2(ec));

(iii) the period from 1 July 2008 – of not morethan $0.75 (subject to review pursuant toclause 9.2(ec)),

if a Vehicle is driven on the Exhibition StreetExtension:

(iv) without a tag; or

(v) with a tag that is of a classification differentfrom the Vehicle,

where that Vehicle is registered under section 73B ofthe Project Legislation, is subject to that agreementand a tag is issued in respect of that Vehicle.

(ec) Clepco may initiate a review of the quantum of the feeper Trip (in accordance with the meaning of Trip inthe Toll Calculation Schedule as set out in Schedule 4to the IFA) it may charge under clauses 9.2(eb) or9.2(eg)(v), in order to agree with the State to set adifferent amount for the fee, in the followingcircumstances:


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(i) in the period between 1 April 2008 and 30 June2008 (that is, the quarter immediately precedingthe reduction in the fee from $0.90 to $0.75 perTrip on 1 July 2008), if Clepco believes that thereduction should not occur because it wouldlead to an unsustainable increase in Trips towhich the fee would apply; or

(ii) at any time after 1 July 2007, if the total numberof Trips to which the fee applied during the twoconsecutive quarters immediately preceding therelevant review exceeds 12% of the totalnumber of Trips during those two quarters;or(iii) at any time after 1 July 2008, if:

(A) the fee has reduced to $0.75 per Trip on 1July 2008;

(B) subsequent to this reduction, there is asignificant increase in the number ofTrips to which the fee applies;

(C) Clepco and the State have agreed toincrease the fee under this paragraph (ec)to greater than $0.75 per Trip; and

(D) the total number of Trips (in aggregate)to which the fees under clause 9.2(eb)and 9.2(eg)(v) applied during the twoconsecutive quarters immediatelypreceding the relevant review increasedat a rate more than 50% greater than therate of increase in the total number ofTrips during those two quarters.

The State agrees to negotiate in good faith withClepco to agree a revised fee, having regard to theassumptions and estimates underlying the calculationof the fees compared with data relating to the totalnumber of Trips to which the fee applied, for the twoconsecutive quarters immediately preceding therelevant review. If the State and Clepco fail to agreea revised fee in the circumstances contemplated byclause 9.2(ec)(i) or 9.2(ec)(ii) by 30 June 2008, thefee that the Company may charge under clause9.2(eb) and 9.2(eg)(v) as at 1 July 2008 will be$0.75 per Trip..cviixcix

(ed) [Intentionally deleted] Not used]


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(ee) [Intentionally deleted]Not used]

(ef) For the purposes of paragraph (eb) and (eg)"Vehicle" has the meaning given to it in the TollCalculation Schedule.cviiic cixci

(eg) Where:

(i) Clepco satisfies clauses 9.2(e)(i) and 9.2(e)(iii);

(ii) an applicant enters an agreement with Clepco inrespect of one or more Vehicles providing forthe payment of tolls without a tag;

(iii) Clepco has, before the applicant enters into theagreement referred to in subparagraph (ii), madeavailable to potential applicants information inrelation to the arrangements and services madeavailable and the applicable fees or chargesunder clause 9.2(e)(i) to enable the applicant tomake an informed decision as to the type ofarrangement and services the applicant wishes touse,

then Clepco may, in connection with the agreementreferred to in subparagraph (ii), levy or impose:

(iv) a one-off start-up fee of not more than $5.50where the agreement allows the applicant tolink at least four Vehicles to that agreement;and

(v) a Vehicle matching fee of:

(A) for the period until 30 June 2007, notmore than $1.20;

(B) for the period from 1 July 2007 until 30June 2008 (inclusive), not more than$0.90 (subject to review pursuant toclause 9.2(eb)); and

(C) for the period from 1 July 2008, not morethan $0.75 (subject to review pursuant toclause 9.2(eb)),

per Trip (in accordance with the meaning ofTrip in the Toll Calculation Schedule as setout in Schedule 4 to the IFA) if a Vehicle inrespect of which the agreement is entered intois driven on the Exhibition Street Extensionwithout a tag where:


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(E) that Vehicle is registered under section73B of the Project Legislation;

(F) that Vehicle is not also registered undersection 73C of the Project Legislation;and

(G) that Vehicle is subject to that agreement,

(f) Clepco shall obtain the prior approval of the State toany material change in the Tolling System. The Statemay notonly withhold its approval if eitherto a material change if the material change would or would be reasonably likely to result in any of the following:

(i) Clepco is required to make the change having regard to clause 14.3(d); ora non-compliance with any requirements under this Deed which is not immaterial;

(ii) the change, if made, would not:a breach of any Laws;

(A) result in a breach of this Deed; andiii) a material adverse change to the ability of Clepco to operate the Tolling System to the higher of the performance standard set out in this Deed and the performance standard to which Clepco was operating the Tolling System immediately prior to the implementation of the change;

(B) be to the detriment of the State or users of the Exhibition Street Extension.iv) a material adverse impact on users of the Exhibition Street Extension, including their ability to access or manage their accounts; and

(v) a material adverse change to the net operating cashflow of the State or an incoming operator on the basis that the State or the incoming operator is operating the road as a tollroad in the same or a substantially similar manner as it was operated by Clepco immediately prior to handover.

Approval under this paragraph (f) does not limit anyobligation of Clepco under any other provision of thisDeed.

(fa) The parties agree that:


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(i) the State will not unreasonably withhold or delay its approval under clause 9.2(f) having regard to the bureau nature of the Tolling System; and

(ii) either party may refer a matter arising under clause 9.2(f) and this clause 9.2(fa) for resolution in accordance with Article 16.

(g) A variation in a toll may only be made in accordancewith the provisions of the Toll Calculation Scheduleor as otherwise agreed or determined in accordancewith clauses 2.9 to 2.12.

(h) Clepco shall use tags as the primary method ofenabling it, through the medium of the TollingSystem:cxcii

(i) to levy tolls in relation to the Exhibition StreetExtension;cxiii

(ii) to determine whether arrangements for thepayment of the appropriate toll subsist,cxiiv

when the Exhibition Street Extension is used for thepassage of a vehicle.

Clepco acknowledges and agrees that neither thenature nor extent of its obligation under this clause9.2(h) is limited or qualified by the fact that tolls maybe levied under the Toll Calculation Schedule otherthan on the basis of use of the Exhibition StreetExtension (or a part of it).cxiiicv

(i) Subject to clauses 9.2(l) and 9.2(la), Clepco shallensure that:cxviv

(i) prior to Delivery (for this purpose clause8.2(h)(ii) shall not apply) there is a distributionof tags to such categories of prospective usersof the Exhibition Street Extension as isconsistent with the efficient use of theExhibition Street Extension;

(ii) after Delivery (for this purpose clause 8.2(h)(ii)shall not apply), tags are made available toexisting and proposed users of the ExhibitionStreet Extension at no cost;cxvii

(iii) equivalent replacement tags are promptly madeavailable at no cost except:cxviii


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(A) in respect of tags lost, destroyed ordamaged, or which become faulty, as aresult of wilful, reckless or negligent actsor omissions of persons entitled topossession of them or their agents; orcixvii

(B) where the tag to be replaced (or, if the tagto be replaced was itself a replacementtag, where the tag which was replaced bythe tag to be replaced) was last issuedmore than 12 months before the requestfor its replacement, tolls in relation to theExhibition Street Extension levied withrespect to that tag (including tolls withrespect to any tag replaced by that tag)fell short of either:

(1) $25.00 in the 12 months precedingthat request, being a request madebefore 1 July 2001; or

(2) $27.50 in the 12 months precedingthat request, being a request madeon or after 1 July 2001.cxviiicx

(j) [Deleted]Not used]

(k) Clepco acknowledges that no toll (or fee or chargereferred to in paragraph (e),(eb), (ec) or (eg)) may belevied in relation to the Exhibition Street Extensionwhere the Vehicles concerned are Exempt Vehicles orin respect of any use of the Exhibition StreetExtension by Exempt Vehicles.cxix cxxii cxxiii

(l) As a condition of issue of any tag (but not for use ofthe Exhibition Street Extension or for the grant of, oragreement to grant, a right or authority to use theExhibition Street Extension), Clepco may require thatthe relevant applicant pay (for each tag applied for) atthe end of (or promptly after) each Relevant Tag Yearan amount not in excess of the amount, if any, bywhich either:

(i) $25.00 exceeds the aggregate amount of tolls inrelation to the Exhibition Street Extensionlevied in the Relevant Tag Year with respect tothe tag, being a Relevant Tag Year endingbefore 1 July 2001; or


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(ii) $27.50 exceeds the aggregate amount of tolls inrelation to the Exhibition Street Extensionlevied in the Relevant Tag Year with respect tothe tag, being a Relevant Tag Year ending on orafter 1 July 2001.

In this regard:

(i) an amount so paid shall constitute tolls leviedby Clepco in the Relevant Tag Year;

(ii) Relevant Tag Year in relation to a particular tagmeans a Tag Year with respect to the tag whichis one of the first three Tag Years in relation tothe tag; and

(iii) where a replacement tag is issued, Tag Yearswill still be assessed by reference to the originaltag for the purposes of this clause. For clarity,the issue of a replacement tag as part of ageneral release of "new generation" tags (thatis, the general issue of technologicallyimproved tags) does not constitute the issue of areplacement tag unless the tag being replaced isof the same "new generation".cxxiiv

(la) If:

(i) an agreement providing for the payment of tollsentered (or to be entered into) by an applicantfor a tag (not being a replacement tag) allowsfor the payment of tolls in arrears;

(ii) an applicant for a tag (not being a replacementtag) requires anonymity;

(iii) an applicant for a tag (not being a replacementtag) is unable to satisfy Clepco as to his, her orits capacity to meet toll payments or as to his,her or its identity (and, in this regard, Clepcoshall act reasonably in relation to the evidence itrequires to be satisfied of these matters); or

(iv) an equivalent replacement tag is provided incircumstances outlined in sub-paragraph9.2(i)(iii)(A) or 9.2(i)(iii)(B),

then Clepco may (as a condition of issue of the tag butnot for use of the Exhibition Street Extension or forthe grant of, or agreement to grant, a right or authorityto use the Exhibition Street Extension) require that the


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applicant for the tag pay (for each tag so applied for) adeposit of an amount not exceeding:

(v) in the case of paragraph (i), $20.00 (asescalated);

(vi) in the case of paragraph (ii), $100.00 (asescalated);

(vii) in the case of paragraph (iii), $50.00 (asescalated);

(viii) in the case of paragraph (iv), the value of thetag.

Clepco may apply amounts so deposited in or towardssatisfaction of moneys due and owing to Clepco bythe person who applied for the tag. Subject to thisright, Clepco shall ensure that the amount of any suchdeposit is:

(ix) other than for a deposit under paragraph (i),promptly after return of the tag or receipt ofnotice of loss or destruction of the tag (withoutany request for a replacement tag), refunded tothe person who applied for the tag; and

(x) in the case of a deposit paid under paragraph(i):

(A) within the first 12 months after therelevant Start Date, promptly after returnof the tag or receipt of notice of loss ordestruction of the tag (without anyrequest for a replacement tag), refundedto the person who applied for the tag; or

(B) otherwise applied in or towardssatisfaction of any liability for tolls inrelation to the Exhibition StreetExtension incurred by the person whoapplied for the tag after the firstanniversary of the relevant StartDate.cxxiiicxv

(m) In this clause, references to:

(i) "tags" are references to transponders which areplaced in or on vehicles, which enable theTolling System to detect electronically thepassage of those vehicles on the ExhibitionStreet Extension and which have the capacity to


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transmit and receive informationelectronically;cxxviv cxxvii

(ii) (as escalated) is a reference to the product ofthe dollar amount preceding the reference and afraction:cxxviii

(A) the denominator of which is the CPI forthe quarter ended 30 June 1999; andcxixvii

(B) the numerator of which is the CPI mostrecently published prior to making therelevant calculation, unless thecalculation relates to a particular 12month period, in which case thenumerator is the CPI most recentlypublished prior to the commencement ofthat period;cxxviiicxx

(iii) "Start Date" are, in relation to any particular tagissued in relation to a particular vehicle (orparticular vehicles) or in relation to some otheridentifiable characteristic, references to the dateas determined in accordance with the principlesagreed in writing between the State and theCompany from time to time;cxxix

(iv) "Tag Year" are, in relation to a tag, referencesto a period of twelve months commencing oneither the relevant Start Date or on ananniversary of the relevant Start Date, providedthat the final Tag Year in relation to a particulartag shall:

(A) end on the earlier of the date on whichClepco was notified of the loss ordestruction of the tag and the date onwhich the tag was returned and in eithercase was not replaced; and

(B) commence on the later of the relevantStart Date and the last anniversary of therelevant Start Date to occur prior to thedate of that notification or return.cxxxii

(n) The State shall:

(i) cause to be prescribed by regulation underSection 118 of the Project Legislation eachprocess, each device and each manner of use ofdevices, as:


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(A) constitutes (in the case of a process ordevice) an aspect of the Tolling Systemor (in the case of a manner of use) themanner of use of either a deviceprescribed under Section 118 of theProject Legislation or a device which theState must, under this paragraph (n),cause to be prescribed; and

(B) the State and the Company may haveagreed prior to the relevant date shouldbe so prescribed:

(1) so as to attract the operation ofsection 74 of the ProjectLegislation (in the case of adevice); or

(2) so that evidence of a vehicle beingdriven in a toll zone (within themeaning of the ProjectLegislation), as indicated ordetermined by an image ormessage produced by the relevantprocess, by the relevant device (ifused in a particular manner) or bya particular device (if used in therelevant manner), may undersection 88 of the ProjectLegislation be admissible inevidence under that section and(absent evidence to the contrary)constitute proof of the vehiclebeing so driven.

In this paragraph (n), the date which is theoperative date for the purposes of the deedentitled "Second Amending Deed" made by theparties on or around 30 April 1999 shallconstitute the relevant date;

(ii) cause to be prescribed by regulation undersection 118 of the Project Legislation eachprocess, each device and each manner of use ofdevices, as:

(A) constitutes (in the case of a process ordevice) an aspect of the Tolling Systemor (in the case of a manner of use) the


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manner of use of either a deviceprescribed under section 118 of theProject Legislation or a device which theState must, under this paragraph (n),cause to be prescribed;

(B) the Company requests (by notice to theState) be prescribed by regulation undersection 118 of the Project Legislation(being a request which specificallyidentifies the relevant process, device ormanner of use in detail reasonablysufficient to facilitate its being soprescribed);

(C) is capable of being prescribed byregulation under section 118 of theProject Legislation; and

(D) is reasonably necessary to be prescribedby regulation under section 118 of theProject Legislation:

(1) so as to attract the operation ofsection 74 of the ProjectLegislation (in the case of adevice); or

(2) so that evidence of a vehicle beingdriven on a toll zone (within themeaning of the ProjectLegislation), as indicated ordetermined by an image ormessage produced by the relevantprocess, by the relevant device (ifused in a particular manner) or bya particular device (if used in therelevant manner), may undersection 88 of the ProjectLegislation be admissible inevidence under that section and(absent evidence to the contrary)constitute proof of the vehiclebeing so driven;

(iii) cause to be conferred by regulation underSection 118 of the Project Legislation power onthe Company to exempt from the requirement tobe registered under Part 4 of the ProjectLegislation, a particular vehicle or vehicles or a


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particular category or categories of vehicle,whether permanently or for particular times orparticular periods, whether conditionally orunconditionally and whether in whole or in part;and

(iv) cause to be prescribed by regulation underSection 118 of the Project Legislation thematters that must or may be contained in acertificate in order for that certificate toconstitute the prescribed form of certificate forthe purposes of Section 89(4) of the ProjectLegislation.cxxxiii

(o) For the purposes of section 76(1) of the ProjectLegislation, the State shall cause an amount ofadministrative costs to be prescribed by regulation,being an amount determined by the State:

(i) in accordance with the methodology generallyapplied from time to time in arriving atassessments of costs of proposed statutory rulesfor the purpose of inclusion within regulatoryimpact statements under the SubordinateLegislation Act 1994; and

(ii) with the objective of measuring administrativecosts likely to be incurred by Clepco as a resultof the commission of an offence under section73 of the Project Legislation and theundertaking of those steps which need to beundertaken in order to have any charge inrespect of such an offence proved.

The appropriateness of any amount so prescribed:

(iii) shall be reconsidered by the State at intervals ofno greater than 3 years since the later of 30 June1999 and the last reconsideration of them underthis paragraph (iii) with each party bearing costsincurred or payable by it in connection withsuch a reconsideration;

(iv) shall be reconsidered by the State within areasonable time of being requested by Clepco todo so, provided the costs incurred or payable bythe State in connection with such areconsideration are paid by Clepco promptlyafter demand for them; and


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(v) may be reconsidered from time to time by theState, at the cost of the State, provided thatcosts incurred or payable by Clepco inconnection with such a reconsideration are paidby the State promptly after demand for them.

In any reconsideration of the appropriateness of anyamount so prescribed, the State shall re-determine thatamount in accordance with the methodology outlinedin paragraph (i), with the objective outlined inparagraph (ii).

Clepco shall provide such information to the State asmay be reasonably necessary in order to enable orfacilitate such a reconsideration, promptly after beingrequested to do so.cxxxiiv

(p) The first time a particular person requests Clepco tomake available an arrangement which provides for thepayment of tolls in relation to the Exhibition StreetExtension, Clepco shall promptly do so on theapplicable terms and conditions for that particularperson. Subject to that person entering into anagreement on those terms and conditions andcomplying with them, Clepco shall (without limitationto its obligations under the Project Legislation)promptly ensure that (subject to those terms andconditions) each vehicle to which the agreementapplies is either registered under Division 2 of Part 4of the Project Legislation or exempted from therequirement to be registered under that Part inaccordance with regulations made under the ProjectLegislation. This provision shall be construed so asnot to derogate from the other rights and obligationsof Clepco, in respect of any subsequent registration orexemption.cxxxiiicxxv

(q) If, under the Project Legislation, an infringementnotice is caused to be served but further proceedingsare not taken in respect of the relevant offence (oralleged offence) under section 73 of the ProjectLegislation as a result of the payment of an amountsufficient to expiate the notice, the State shall pay tothe Company (for itself and as agent of Clepco) theTU Amount, within 20 Business Days of thatpayment. The Company shall, however, refund anyamount so paid to it within 5 Business Days of itsbeing requested by the State to do so if the relevant


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infringement notice is withdrawn by the enforcementofficer under the Project Legislation. For the purposeof this paragraph (q), the TU Amount is the sum of:

(i) if the payment is made:

(A) in the quarter ending 30 June 1999,$2.52; or

(B) in a quarter subsequent to the quarterending 30 June 1999 ("Qt"), the product(rounded to the nearest cent) of theamount applicable under this paragraph(i) in the quarter preceding Qt ("Qt-1")and a fraction, the numerator of which isthe "Maximum Charge Toll" set for Qtunder the "Toll Calculation Schedule"(as those terms are defined in the CityLink Concession Deed) with respect tocars and the denominator of which is the"Maximum Charge Toll" set for Qt-1under the "Toll Calculation Schedule" (asthose terms are defined in the City LinkConcession Deed) with respect to cars.(Each of the Company and the State shallreconsider, in good faith, theappropriateness of the amount applicableunder this paragraph (i) if and when theother of them requests that it do so.); and

(ii) if the payment is made in a quarter not affectedby a determination or redetermination of theamount to which this paragraph (ii) applies,$8.86.

The State:

(iii) shall make any determination orredetermination of the amount to whichparagraph (ii) applies:

(A) in accordance with the methodologygenerally applied from time to time inarriving at assessments of costs ofproposed statutory rules for the purposeof inclusion within regulatory impactstatements under the SubordinateLegislation Act 1994; and


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(B) with the objective of measuringadministrative costs likely to be incurredby Clepco in connection with:

(1) any request by it under Part 4 ofthe Project Legislation that aninfringement notice be served; and

(2) the undertaking of those stepsleading to the making of such arequest as, under Part 4 of theProject Legislation, may beundertaken by Clepco as a result ofa vehicle which is not registeredunder that Part being driven on apart of the Exhibition StreetExtension in contravention of thatPart;

(iv) shall redetermine the amount to whichparagraph (ii) applies on or around expiry of thethird month after "Completion" of the"Southern Link" (as those terms are defined inthe City Link Concession Deed) and also whenthe appropriateness of any amount which theState has caused to be prescribed by regulationfor the purposes of section 76(1) of the ProjectLegislation is being reconsidered underparagraph 9.2(o)(iii), with each party bearingcosts incurred or payable by it in connectionwith such a redetermination;

(v) shall redetermine the amount to whichparagraph (ii) applies within a reasonable timeof being requested by Clepco to do so, providedthat costs incurred or payable by the State inconnection with such a redetermination are paidby Clepco promptly after demand for them; and

(vi) may redetermine the amount to whichparagraph (ii) applies from time to time, at thecost of the State, provided that costs incurred orpayable by Clepco in connection with such aredetermination are paid by the State promptlyafter demand for them.

Any determination or redetermination of the amountto which paragraph (ii) applies shall first take effect in


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the quarter which first commences after thedetermination or redetermination is made.

Clepco shall provide such information to the State asthe State may reasonably consider to be necessary ordesirable in order to enable or facilitate anydetermination or redetermination of the amount towhich paragraph (ii) applies, promptly after beingrequested to do so.cxxxviv

9.2 (qa)

(i) If Clepco is liable to pay GST in respect of anysupplies for which the TU Amount payableunder clause 9.2(q) is consideration, then theState must pay Clepco an additional amount(“the GST Amount”) equal to the GST payableby Clepco in respect of that TU Amount.

(ii) Clepco must issue a Tax Invoice to the State inrespect of a supply referred to in 9.2(qa)(i)where the State has not agreed to issue aRecipient Created Tax Invoice in respect of thesupply.

(iii) Clepco agrees that it will not issue a TaxInvoice in respect of the supplies referred to in9.2(qa)(i) in respect of which the State hasagreed to issue a Recipient Created Tax Invoiceunder this clause.

(iv) Where the State has agreed to issue a RecipientCreated Tax Invoice for a supply referred to in9.2(qa)(i), the State must pay the GST Amountat the same time and in the same manner as allother amounts in relation to the supply arerequired to be paid under the Deed or, if thattime has already occurred, within 7 days of arequest from Clepco for payment of the GSTAmount.

(v) Where Clepco must issue a Tax Invoice for asupply referred to in 9.2(qa)(i), the requirementfor the State to pay the GST Amount on thesupply is subject to Clepco issuing that TaxInvoice to the State. Where a valid tax invoiceis not received by the State at the same time theTU Amount is paid or payable, the GSTAmount shall be payable within 7 days ofreceipt of a valid tax invoice.


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(vi) If for any reason the amount of GST payable ona supply referred to in clause 9.2(qa)(i) isdifferent from the amount in respect of GSTpreviously payable by the State under clause9.2(qa)(i), or if there is an adjustment event inrespect of the supply referred to in clause9.2(qa)(i),as appropriate:

(A) Clepco may recover from the State theamount by which the amount of GST onthe supply exceeds the amount alreadypayable under clause 9.2(qa)(i); or

(B) Clepco must refund to the State theamount by which the amount already paidunder clause 9.2(qa)(i) exceeds theamount of GST now payable on thesupply; and

(C) Clepco must issue an Adjustment Note inrelation to the supply within 28 days ofthe adjustment event where the State hasnot agreed to issue a Recipient CreatedAdjustment Note; and

(D) the State must issue a Recipient CreatedAdjustment Note in relation to the supplywithin 28 days of the adjustment eventwhere the State has agreed to issue anAdjustment Note in relation to thesupply.

(vii) Terms defined in the GST Act have the samemeaning in this clause 9.2(qa) unless providedotherwise. cxxxvii

(r) Under the Project Legislation, Clepco or the personfor the time being that is the "relevant corporation"within the meaning of the Project Legislation, mayspecify toll zones and may fix tolls which are payablein respect of the use of vehicles on toll zones formingpart of the Exhibition Street Extension.

Without limiting the manner in which Clepco or theperson for the time being that is the "relevantcorporation" within the meaning of the ProjectLegislation may otherwise specify toll zones thatcomply with the requirements of, and are inaccordance with, this Deed and the Schedules to thisDeed, the parties agree and acknowledge that any


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notice published by Clepco or the person for the timebeing that is the "relevant corporation" within themeaning of the Project Legislation under section71(l)(a) of the Project Legislation shall comply withthe requirements of, and is in accordance with, thisDeed and the Schedules to this Deed if that noticeboth:

(i) specifies the toll zone which relates to theTollable Section (to the extent that the TollableSection has been declared as part of theExtension road under section 93H of the ProjectLegislation); and

(ii) is in the form of, or is substantially in the formof, Schedule 6.

It is further agreed and acknowledged, for theavoidance of doubt, that any notice published byClepco or the person for the time being that is the"relevant corporation" within the meaning of theProject Legislation under section 71(l)(a) of theProject Legislation will not be:

(iii) not in accordance with this Deed; and/or

(iv) not in accordance with the Schedules to thisDeed,

merely because the toll zone specified in that noticeonly contains so much of the Tollable Section relatingto that toll zone as has or have been declared as partof the Extension road under section 93H of the ProjectLegislation.cxxxviii

9.2A Request For Payment

(a) The parties acknowledge that Clepco may, undersection 77(1) of the Project Legislation, in respect ofthe use of a Vehicle in a toll zone (within the meaningof the Project Legislation), send or request theEnforcement Agency to send, a Request For Paymentto the Addressee, in the circumstances described insection 77(1) of the Project Legislation.

(b) Clepco will not in respect of a particular Vehicle:

(i) send a Request For Payment to the relevantAddressee under section 77(1)(a) of the ProjectLegislation; or


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(ii) request the Enforcement Agency to send aRequest For Payment to the relevant Addresseeunder section 77(1)(b)(i) of the ProjectLegislation,

where:

(iii) at the time of the relevant use the Vehicle is, orought reasonably to have been, registered byClepco on the register maintained under section73A of the Project Legislation (including byway of registration subsequent to the use inaccordance with section 73C of the ProjectLegislation);

(iv) the Vehicle is covered by a tollway billingarrangement (within the meaning of the ProjectLegislation);

(v) the Vehicle is exempt from the requirement tobe registered under section 73A of the ProjectLegislation, in accordance with the powerconferred on Clepco under clause 9.2(n)(iii); or

(vi) the Vehicle is an Exempt Vehicle.

(c) Where Clepco (or a person authorised by Clepco) hasthe belief described in section 77(1) of the ProjectLegislation in respect of a Vehicle, Clepco agrees, thatit will not, and will procure that any such authorisedperson will not, request the Enforcement Agency toserve an infringement notice under section 77(1)(b)(ii)of the Project Legislation or commence proceedingsagainst a person in accordance with section77(1)(b)(iii) of the Project Legislation in respect ofthe use of the Vehicle in a toll zone (within themeaning of the Project Legislation) unless Clepco (ora person authorised by Clepco) has either sent aRequest For Payment to that person or requested theEnforcement Agency to send a Request For Paymentin accordance with section 77(1)(b)(i) of the ProjectLegislation, and that Request For Payment has beensent to the Addressee,

and either:

(i) that Request For Payment has not been paid infull for four days from the due date for payment


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as shown on that Request For Payment in thecase where the Addressee:

(A) has previously sought registration of aVehicle under section 73A of the ProjectLegislation;

(B) has previously been issued with aRequest For Payment;

(C) has previously been served with aninfringement notice under section77(1)(b)(ii); or

(D) has previously had proceedingscommenced against them under section77(1)(b)(iii); or

(ii) in any other case:

(A) a Further Request For Payment has beensent to that Addressee subsequent to theexpiry of the due date for payment forthat Request For Payment; and

(B) that Further Request For Payment has notbeen paid in full for four days from thedue date as shown on that FurtherRequest For Payment.

(d) A Request For Payment sent by Clepco (or a personauthorised by Clepco) to an Addressee must:

(i) be in writing and must separately identify eachuse for which a toll is payable and separatelyidentify the Toll Administration Fee payable;

(ii) be in a form approved by the State, suchapproval not to be unreasonably withheld ordelayed;

(iii) be sent promptly, having regard to the systemsof operation referred to in clause 14.3(d), afterthe expiry of the 3 day period commencing onthe day of the last use of the Exhibition StreetExtension to which that Request for Paymentrelates, but not before the expiry of thatperiod;cxxixvii

(iv) relate to relevant uses of the Vehicle for whicha Request For Payment may be sent in


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accordance with clause 9.2A(c) within threeconsecutive days from the commencement ofthe day of the earliest use identified on theRequest For Payment;

(v) without limiting Clepco's undertakings set outin clause 14.3(d), be sent no later than:

(A) from 1 July 2005 until 30 September2005, 40 days;

(B) from 1 October until 31 December 2005,35 days;

(C) from 1 January 2006 until 30 June 2006,30 days, if agreed by the parties, or if nosuch agreement is reached, 35 days; and

(D) from 1 July 2006, the number of daysdetermined in accordance with clause9.2A(g),

after the date of the earliest use identified onthat Request For Payment; and

(vi) not state a due date for payment of less than 16days from the date of the Request For Payment.

(e) A Further Request For Payment sent by Clepco (or aperson authorised by Clepco) to an Addressee must:

(i) specify the applicable Request For Payment,and may include the applicable TollAdministration Fee;

(ii) be in a form approved by the State, suchapproval not to be unreasonably withheld ordelayed;

(iii) without limiting Clepco's undertakings set outin clause 14.3(d), be sent not later than:

(A) from 1 July 2005 until 30 September2005, 60 days;

(B) from 1 October until 31 December 2005,55 days;

(C) from 1 January 2006 until 30 June 2007,50 days, if agreed by the parties, or if nosuch agreement is reached 55 days; and


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(D) from 1 July 2007 until 30 June 2008, 71days;

(E) from 1 July 2008, the number of daysdetermined in accordance with clause9.2A(g),

after the date of the earliest use identified on theapplicable Request For Payment;

(iv) not state a due date for payment of less than 16days from the date of the Further Request ForPayment.

(f) Where a Request For Payment or a Further RequestFor Payment is paid in full by the due date forpayment as specified in the Request For Payment orFurther Request For Payment as applicable, thenClepco will not request that the Enforcement Agency:

(i) serve an infringement notice under section77(1)(b)(ii) of the Project Legislation; or

(ii) commence proceedings against a person inaccordance with section 77(1)(b)(iii) of theProject Legislation,

in respect of the use of a Vehicle the subject of theRequest for Payment or the Further Request forPayment as applicable.

(g) (i) The parties agree that, 90 days prior to aReview Date, the parties will commencenegotiations, in good faith, to reduce the timeperiods referred to in clauses 9.2A(d)(v) and9.2A(e)(iii) from that Review Date, havingregard to Clepco's undertakings set out in clause14.3(d).

(ii) If, 30 days prior to that Review Date, the partiescannot reach agreement in relation to thereduction referred to in (i) above, then the timeperiods referred to in clauses 9.2A(d)(v) and9.2A(e)(iii) existing at that date will remainuntil the following Review Date.

(iii) For the purposes of this clause 9.2A(g) "ReviewDate" means 1 July 2006, and the anniversaryof that date each year thereafter.


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(h) Any Request For Payment or Further Request ForPayment sent in accordance with clause 9.2A(c) thatis the final request for payment to be sent to thatAddressee must clearly state on its face that it is thefinal request for payment that will be sent.

(i) Where a Request For Payment or Further Request ForPayment is sent to an Addressee and that Addresseesupplies a sworn statement in accordance with section72(3) of the Project Legislation in relation to all of theuses of the Vehicle the subject of the Request ForPayment or Further Request for Payment or some ofthose uses, then:

(i) where the sworn statement is in relation to all ofthe uses of the Vehicle the subject of theRequest For Payment or Further Request forPayment, Clepco will cause the Request ForPayment or Further Request For Payment, asapplicable, to be cancelled, and cancel any TollAdministration Fees levied or imposed byreason of the issue of that Request For Paymentor Further Request For Payment; or

(ii) otherwise, Clepco agrees, that it will not, andwill procure that any such authorised personwill not, request the Enforcement Agency toserve an infringement notice under section77(1)(b)(ii) of the Project Legislation orcommence proceedings against a person theAddressee in accordance with section77(1)(b)(iii) of the Project Legislation inrespect of the use of the Vehicle that was notthe subject of the sworn statement, unless itcancels the Request For Payment or FurtherRequest For Payment, and any TollAdministration Fees levied or imposed byreason of the issue of that Request For Paymentor Further Request For Payment, and issues anew Request For Payment (in respect of whicha Toll Administration Fee may be levied orimposed) under this clause 9.2A to theAddressee in respect of that use, and any othersuch use, that was not the subject of the swornstatement.cxxxviii

(j) Clepco may, at any time, cause a Request ForPayment or Further Request For Payment, as


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applicable, to be cancelled, and where it does so itmust also cancel any Toll Administration Fees leviedor imposed by reason of the issue of that Request ForPayment or Further Request For Payment.

(k) (i) If, while Clepco is complying with itsundertaking set out in clause 14.3(d):

(A) matters beyond Clepco's reasonablecontrol prevent Clepco from complyingwith time frames in either clause9.2A(d)(v), 9.2A(e)(iii) or 9.2A(l)(i),where those matters or theirconsequences could not have beenprevented by the exercise of a standard ofcare and diligence consistent with that ofa prudent person undertaking Clepco'sobligations; or

(B) a complaint or enquiry by a member ofthe public that results in an investigationby Clepco in connection with use of aVehicle for which a Request For Paymentor Further Request For Payment may besent, prevents Clepco from complyingwith time frames in either clause9.2A(d)(v) or 9.2A(e)(iii), where thatcomplaint or enquiry or its consequencescould not have been prevented by theexercise of a standard of care anddiligence consistent with that of a prudentperson undertaking the obligations,

then provided that Clepco takes allreasonable steps to minimise any delayscaused by such matters for investigations,the time periods set out in those clauseswill be extended, but only to the extentthat Clepco is so prevented fromcomplying.

(ii) For the purposes of clause 9.2A(k)(i)(A), allacts and omissions of Clepco's contractors,agents or employees (and their respectivecontractors, agents or employees) are deemed tobe matters within Clepco's control.

(iii) If, at the request of a member of the public,Clepco and the member of the public enter into


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an arrangement in relation to an extension ofthe due date for payment for the amountpayable under a Request For Payment then thetime periods set out in clause 9.2A(e)(iii) willbe extended by an amount of time equivalent tothe extension the subject of thatarrangement.cxxxix

(l) Where Clepco requests disclosure of registration orownership information in relation to a Vehicle undersection 90(1A) or 90(1B) of the Project Legislation orfrom NEVDIS:

(i) such request must be made not more than 24days after the Trip ( in accordance with themeaning of Trip in the Toll CalculationSchedule in Schedule 4 to the IFA) to whichthat request relates; and

(ii) Clepco may only make one such request inrelation to a Vehicle in any one day.

(m) (i) The parties agree that, 90 days prior to aReview Date, the parties will commencenegotiations, in good faith, to reduce the timeperiod referred to in clause 9.2A(m)(i) fromthat Review Date, having regard to Clepco'sundertakings in clause 14.3(d).

(ii) If, 30 days prior to the Review Date, the partiescannot reach agreement in relation to thereduction referred to in (i) above, then the timeperiod referred to in clauses 9.2A(l)(i) existingat that date will remain until the followingReview Date.

(iii) For the purposes of this clause 9.2A(m),"Review Date" means 1 January 2006, and theanniversary of that date each year thereafter.

(n) If, as a result of a change in State policy, the RoadsCorporation or a relevant person within the meaningof section 92(2) of the Road Safety Act 1986:

(i) ceases disclosure to Clepco of registration orownership information under section 90(1) ofthe Project Legislation or from NEVDIS; or

(ii) discloses to Clepco registration or ownershipinformation under section 90(1) of the ProjectLegislation or from NEVDIS in a manner or to


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an extent materially different to the manner orextent of disclosure provided to enforcementagencies responsible for enforcement ofoffences based on traffic surveillance devices,and that difference adversely affects Clepco'sability to issue Requests For Payment,

then clause 9.2A(c) will not apply to Clepco for solong and to the extent that the circumstances inclauses 9.2A(n)(i) or (ii) (as applicable) apply.cxlcxxxii

9.2BToll Administration Fees (o) The State must procure that the Enforcement Agency meets the Debt Recovery Cycle Requirement.

(p) Clepco will provide a notice to the State if it considers that the Enforcement Agency is failing to meet the Debt Recovery Cycle Requirements.

(q) On receipt of a notice under clause 9.2A(p) the State must procure that the Enforcement Agency meets the Debt Recovery Cycle Requirement.

9.2B Toll Administration Fees

(a) In accordance with section 71(1A) of the ProjectLegislation, Clepco may levy or impose a TollAdministration Fee no more than once per RequestFor Payment or Further Request For Payment. For theavoidance of doubt, Clepco has no entitlement to aToll Administration Fee on a per Trip (in accordancewith the meaning of Trip in the Toll CalculationSchedule as set out in Schedule 4 to the IFA) basis.

(b) A Toll Administration Fee:

(i) in the case of a Request For Payment must notat any time exceed the Request For PaymentCap applicable at that time; and

(ii) in the case of a Further Request For Paymentmust not at any time exceed the Further RequestFor Payment Cap applicable at that time.

(c) For the avoidance of doubt, the parties agree thatduring the period from 1 July 2007 to 30 June 2008(inclusive):

(i) the Request For Payment Cap is $12.00(inclusive of GST); and


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(ii) the Further Request For Payment Cap is $21.50(inclusive of GST).

(d) (i) At any time after 30 June 2009, the State or theCompany may initiate a review of the

quantum of the Toll Administration Fees,the Ongoing Costs Cap, the Request ForPayment Cap or the Further Request ForPayment Cap calculated in accordancewith this clause 9.2B, having regard to:

(A) the assumptions and estimates underlyingthe calculation of those fees ascontemplated in the definitions of“Further Request For Payment CostsCap” and “Ongoing Costs Cap”compared with the data relating to actualcosts for the year immediately precedingthat review, which:

(1) in relation to the Ongoing Costs Cap,are the actual costs of Clepco perRequest For Payment, properlyincurred, of the matters listed in thelast paragraph of the definition of“Ongoing Costs Cap”; and

(2) in relation to the Further Request forPayment Costs Cap, are the actualcosts to Clepco per Further RequestFor Payment, properly incurred, ofthe matters listed in the last paragraphof the definition of “Further Requestfor Payment Costs Cap”; and

(B) the extent to which Clepco has alreadyrecovered its project development costs.

(ii) If the parties are unable to reachagreement within 120 days of thecommencement of a review referred to inclause 9.2B(d)(i) above, the mattermay be referred by either party for

expert determination in accordance withclause 16.

(e) Clepco has no entitlement to any other fee orcharge, other than the Toll Administration Fee, in


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relation to providing Requests For Payment or FurtherRequests for Payment.

9.2C Civil Debt Recovery

Clepco must ensure that its civil debt recovery arrangements in respect of tolls and fees imposed in connection with the Exhibition Street Extension comply with any minimum requirements for civil debt recovery as approved by the Minister and published in the Government Gazette for the purpose of the Project Legislation from time to time.

9.3 Opening

As soon as practicable after the later of:

(a) the date of Delivery (for this purpose clause 8.2(h)(ii)shall not apply); and

(b) the date the Tolling System becomes operational,

Clepco shall open the Exhibition Street Extension for publicuse and may then operate the Tolling System and levy tollsin respect of the passage of Vehicles (within the meaning ofthe Toll Calculation Schedule) in relation to the ExhibitionStreet Extension. Clepco shall:cxlicxxxiii

(c) give notice to the State and VicRoads of its intentionto open the Exhibition Street Extension for public useat least 1 month prior to its being so opened;

(d) effect all insurances required under Article 13 prior toopening the Exhibition Street Extension for publicuse; and

(e) do those things required to be done under clauses11.1, 11.2 and 11.3 prior to opening the ExhibitionStreet Extension for public use.

9.4 Public Use

(a) After Delivery and subject to clause 9.3 and paragraph(b) and after Clepco has opened the Exhibition StreetExtension for public use, Clepco shall keep theExhibition Street Extension open for continuouspublic use during the Concession Period.


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(b) Clepco may close the Exhibition Street Extension if:

(i) compliance with this Deed, the ESEP O & MRequirements or Operation and MaintenanceManuals requires it to do so, but so that theeffect on traffic flow is as little as practicable;or

(ii) it is necessary to do so by reason of:

(A) the requirements of VicRoads or anyother relevant Government Agency;

(B) ESEP Ancillary Works and Operations;

(C) a material risk to the health or safety ofmembers of the public; or

(D) for any other reason which the Stateagrees in writing.

(c) Unless the State gives prior approval, Clepco shall notuse or permit the use of:

(i) the Exhibition Street Extension or any part of itfor any purpose other than public roads (subjecthowever to ESEP Ancillary Works andOperations); or

(ii) subject to clauses 7.5 and 9.2(j), any of itsproperty used to facilitate or enable theoperation, maintenance or repair of theExhibition Street Extension, or any part of it(including the Tolling System) to be used forany other purpose.

9.5 Interference

Insofar as the operation or maintenance of the ExhibitionStreet Extension is likely to interfere with the flow of trafficin the vicinity of ESEP Land, then Clepco shall, byreasonable notice to the State:

(a) request the State to deal with the interference; and


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(b) specify the likely level, location and duration of suchinterference.

9.6 Advertising Signs and Road Signs

(a) Subject to paragraph (c) and to clause 9.4(c), Clepcomay only erect or display Signs on ESEP Land withthe prior approval of the State.

(b) At the end of the Concession Period, Clepco shallcomply with all directions of the State to removeSigns erected pursuant to paragraph (a) from ESEPLand and make good any damage caused by theirplacement or removal.

(c) Clepco shall display, maintain and repair:

(i) traffic or directional signs on ESEP Land inaccordance with the ESEP O & MRequirements or any reasonable requirement ofthe State, VicRoads or any other relevantGovernment Agency; and

(ii) Signs on ESEP Land in accordance with theESEP O & M Requirements or any reasonablerequirement of the State, VicRoads or of anyother relevant Government Agency.

(d) Clepco is expressly authorised by the State to operatetraffic or directional signs on ESEP Land at itsdiscretion to facilitate the efficient operation of theExhibition Street Extension or the City Link, but sothat the adverse effect on traffic flow is as little aspossible.

(e) The State shall erect, and maintain and repair,directional signs relating to the Exhibition StreetExtension outside ESEP Land as and when, and to anextent and of a nature, consistent with that which theState does from time to time in relation to PrincipalTraffic Routes but as varied having regard to the factthat tolls are charged in relation to the ExhibitionStreet Extension (so that, for example, the State mightprovide potential users of the Exhibition StreetExtension with an adequate notice of the imposition oftolls and advice as to alternative routes).cxlxxiiv


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(f) Paragraphs (c) and (d) do not apply to traffic ordirectional signs insofar as they comprise part of thesystem of traffic signals to which ESEP AncillaryWorks and Operations relate. The State shall procurethe erection, display, maintenance, repair andoperation of those traffic and directional signs in away which is not inconsistent with any regime for themanagement of those traffic and directional signs thatmay from time to time be agreed by the State andClepco. It is acknowledged that any regime so agreedwill provide for tram phase call facilities at theintersections referred to in paragraphs (b)(i) and(b)(ii) of the definition of "ESEP Ancillary Works andOperations" and limited tram priority provision at theintersection referred to in paragraph (b)(i).

9.7 Application of Law

Clepco acknowledges that:

(a) the Exhibition Street Extension will be a "highway"for the purposes of the Transport Act 1983 (Vic) andthe Road Safety Act 1986 (Vic) open to the public forpassage with vehicles, even though operated by theprivate sector; and

(b) accordingly, the provisions of Law relating to trafficand motor vehicles on, and the exercise of Victorianstate emergency service, health and police powers inrelation to such highways apply with respect to theExhibition Street Extension.

9.8 Speed Limits

Clepco acknowledge that lawful speed limits on maincarriageways and ramps of the Exhibition Street Extensionwill be those established from time to time under the RoadSafety Act 1986 (Vic) or otherwise by Law.

9.9 Notification of Unlawful Acts

Clepco shall promptly notify all relevant GovernmentAgencies if, in the normal course of operating the ExhibitionStreet Extension, it or the Company becomes aware of:

(a) any unlawful act of a serious nature being committed;or

(b) any other conduct which Clepco is notified by theState it is reasonably required to report to specifiedGovernment Agencies,


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on ESEP Land.

9.10 Engagement of Contractor

Subject to clause 14.3(b), Clepco may subcontract theperformance of some or all of its obligations under Article 9to a Contractor. This will not limit or affect Clepco'sobligations or liability under this Deed.

9.11 State's Rights in Risk Situations

Without limiting clause 2.14, if an Operating Default occursand the State considers in good faith there is or is likely tobe a material risk resulting from the Operating Default:

(a) to the health or safety of users of the Exhibition StreetExtension or other members of the public; or

(b) of material damage to the Exhibition Street Extension,

then, subject to clause 9.12, the State or its nominee mayoperate, repair or maintain (as the case may be) theExhibition Street Extension in an endeavour in good faith toaddress the risk or mitigate its consequences.The State acknowledges that it has no entitlement to tollslevied during any period during which the State is exercisingits rights under this clause.

9.12 Procedure

(a) The State shall exercise its rights under clause 9.11 inaccordance with the provisions of this clause.

(b) If the State considers in good faith that it mustexercise its rights under clause 9.11 as a matter ofurgency it may only do so if:

(i) it has given prior notice of exercise to Clepco,which notice:

(A) may be given verbally;

(B) shall include a brief description of:

(1) the relevant Operating Default;

(2) the nature of the material risk;

(3) what the State initially considers itrequires to facilitate the State'sexercise of its rights under clause9.11; and


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(4) what the State considers in goodfaith to be the course of action toovercome or mitigate the risk; and

(C) requires Clepco to address the risk ormitigate its consequences within areasonable time (which may be by a dateor time specified in the notice which shalltake into account and make dueallowance for all relevant facts andcontingencies reasonably known to theState); and

(ii) after expiry of the time allowed undersub-paragraph (b)(i)(C) Clepco has not taken allsteps reasonably necessary to address the riskand mitigate the consequences should the riskbe (or have been) realised.

(c) In any circumstances other than those to whichparagraph (b) applies:

(i) the State shall give notice to Clepco:

(A) setting out the nature of the OperatingDefault and the material risk;

(B) describing what the State reasonablyconsiders should be the course of actionto address the risk or mitigate itsconsequences;

(C) estimating in good faith the anticipatedcosts of the State in exercising its rightsunder clause 9.11; and

(D) requiring Clepco to overcome or mitigatethat risk within a reasonable time (whichmay be by a date specified in the notice)which shall take into account and makedue allowance for all relevant facts andcontingencies reasonably known to theState; and

(ii) if after notice from the State undersub-paragraph (c)(i) and the expiry of the timeallowed under sub-paragraph (c)(i)(D), Clepcohas not taken all steps reasonably necessary toaddress the risk and mitigate the consequencesshould the risk be (or have been) realised, theState may exercise its rights under clause 9.11.


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(d) If the circumstances giving rise to the exercise by theState under paragraph (b) of its rights under clause9.11 are likely to continue for more than 1 day, theState shall give a further notice to Clepco setting outthe matters in sub-paragraph (c)(i)(A), (B) and (C).

(e) If at any time the State reasonably considers that:

(i) it is necessary or desirable to undertake adifferent course of action from that described ina notice given under any of paragraphs (b), (c)or (d); or

(ii) the costs estimated in a notice given underparagraph (c) or paragraph (d) will besignificantly exceeded,

the State shall give to Clepco a further notice settingout details of such different course of action orincreased costs (as the case may be).

(f) Except insofar as a condition of exercise of a right bythe State, or an obligation of the State, is expressed interms of a good faith requirement the State shall, andshall ensure that its nominee shall, at all times actreasonably in exercise of its rights under clause 9.11and shall endeavour to keep costs incurred to aminimum.

(g) The State (or its nominee) shall cease to operate,repair or maintain (as the case may be) the ExhibitionStreet Extension as soon as reasonably practicableand, in any event, upon the earlier of the relevant riskor consequence having been addressed or mitigated(as the case may be) and the State ceasing toendeavour in good faith to address the risk or mitigateits consequences (as the case may be). Upon the Stateso ceasing to operate, repair or maintain (as the casemay be) Clepco shall recommence to operate, repairor maintain (as the case may be) the Exhibition StreetExtension in accordance with this Deed.

(h) The State shall give notice to Clepco of the date whenit (or its nominee) proposes to, or is required underparagraph (g) to, cease to operate, repair or maintain(as the case may be) the Exhibition Street Extensionand the State and Clepco shall consult with each otherwith the intention of ensuring that the process of theState (or its nominee) ceasing to act and Clepco


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recommencing to perform the relevant activities iseffected as smoothly as possible.

(i) Clepco acknowledges that the State, its nominee andits contractors:

(i) may enter and remain on ESEP Land for thepurposes only of the State exercising its rightsunder clause 9.11 and this clause;

(ii) are, subject to paragraph (f), not under anyobligation to remedy the relevant OperatingDefault or to overcome or mitigate any risk orconsequences in respect of which the Stateexercises its rights under clause 9.11 or thisclause; and

(iii) notwithstanding paragraph (g), may give anotice under paragraph (h) at any time after ithas commenced to exercise its rights underclause 9.11.

(j) Any dispute or difference as to whether an OperatingDefault has occurred or as to the measures required toremedy that default may be referred for expertdetermination under Article 16, but any such referenceshall not operate to delay the exercise of rights underclause 9.11 pursuant to paragraph (b) of this clause.

9.12A Spot Audits by the Statecxliiixxv

(a) Subject to compliance with this clause 9.12A, theState may, at its absolute discretion, conduct a SpotAudit:

(i) from time to time during the Concession Period;

(ii) whether itself or through an agent (whether aGovernment Agency (including VicRoads) orotherwise).

(b) The State must give Clepco reasonable written notice(“Spot Audit Notice”) of its intention to conduct aSpot Audit. That notice must detail:

(i) the persons who will be conducting the SpotAudit;

(ii) the scope of the Spot Audit; and


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(iii) the equipment, information and systems that thepersons conducting the Spot Audit will requireaccess to.

(c) The State may only conduct a Spot Audit if its SpotAudit Notice is accompanied by the Minister's writtenauthorisation of the notice and the matters in it.

(d) The State may revise (whether by way of addition,omission or other change) the matters in the SpotAudit Notice, either before, during or after theconduct of the Spot Audit, if the revisions are inaccordance with this clause, the Minister authorisesthe revisions and the State gives Clepco reasonablenotice of the revisions.

(e) The State must ensure that the Spot Audit isconducted in accordance with the Spot Audit Notice(including any revisions under clause 9.12A(d)).

(f) The State must reasonably consult with Clepco duringthe conduct of the Spot Audit, by:

(i) allowing Clepco to make submissions to theState and its agent in relation to the Spot Auditand to respond to the Spot Audit’s draftfindings, reports and recommendations; and

(ii) providing Clepco with a copy of the SpotAudit's final findings, reports andrecommendations.

(g) Clepco must:

(i) co-operate with the State or its agent andfacilitate the conduct of the Spot Audit; and

(ii) ensure that the Operator co-operates with theState or its agent and facilitates the conduct ofthe Spot Audit.

(h) The State must ensure that, in conducting a SpotAudit:

(i) any disruption to the operation, maintenance orrepair of the Exhibition Street Extension is, as


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far as is reasonably possible given the scope ofthe Spot Audit, minimised; and

(ii) the State and its agent comply with Clepco's andthe Operator's reasonable (having regard to thescope of the Spot Audit) directions in relationto health, safety and access to the ExhibitionStreet Extension, including by obtaining anywork permits that Clepco or the Operator wouldordinarily require from a third party, onreasonable terms, for the conduct of worksimilar to the Spot Audit.

(i) The State must bear all its costs of conducting a SpotAudit and reimburse Clepco, within 30 days of awritten request, for all:

(i) extra costs actually and reasonably incurred toan external third party;

(ii) material internal overheads in respect ofinternal personnel and resources which arerequired due to the unreasonably frequentnature of Spot Audits; and

(iii) lost tolling revenue actually and reasonablyincurred,

by it as a result of the Spot Audit, subject to Clepcoproviding the State with all such information anddocuments as may be reasonably necessary todemonstrate that those costs, overheads and losttolling revenue have been incurred.

For the avoidance of doubt, Clepco will have noentitlement under this clause 9.12A to any costs:

(iv) incurred in remedying any breach identified bythe Spot Audit;

(v) arising as a result of Clepco implementingrecommendations made by the Spot Audit(unless agreed by the parties); or


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(vi) incurred by Clepco prior to the commencementof the Spot Audit.

(j) The State does not assume or owe any duty of care toClepco:

(i) to conduct a Spot Audit; or

(ii) in conducting a Spot Audit to identify:

(A) any failure by Clepco, the ESEP Projector the Exhibition Street Extension tocomply with the requirements of thisDeed, the ESEP O & M Requirements,the Operation and Maintenance Manuals,the Emergency Management Plan, theOperations Quality Plan, the IncidentManagement Quality Plan or any otherlaw, regulation or requirement; or

(B) any other damage to or defect in theExhibition Street Extension.

(k) No Spot Audit conducted, no act or omission by or onbehalf of the State arising out of or in connection witha Spot Audit, and no failure to conduct a Spot Auditwill:

(i) relieve Clepco from, or alter or affect Clepco'sliabilities or responsibilities whether under thisDeed or otherwise according to law; or

(ii) prejudice the State's rights against Clepcowhether under this Deed or otherwise accordingto law.

(l) Any dispute or difference under or in relation to thisclause 9.12A or clause 9.13A may be referred forexpert determination under Article 16.

9.13 Access

Subject to clauses 4.9 and 4.10 and without limitation toclauses 4.11 and 4.13, Clepco shall co-operate with theState, Government Agencies, Utilities and other persons inensuring that they are given reasonable access to ESEP Land


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to enable them to carry out repair and maintenance work toroadways and structures situated on, below, above oradjacent to the Exhibition Street Extension.

9.13A Access and provision of informationcxlxxviv

Without limiting the State's rights under clauses 4.9 and4.10, Clepco shall:

(a) provide the State or its agent (whether a GovernmentAgency (including VicRoads) or otherwise) access tosuch:

(i) equipment, information and systems of Clepco;and

(ii) parts of the Exhibition Street Extension,

as have been identified in the State's Spot Audit Notice(including any revisions under clause 9.12A(d)) andthat the State or its agent may reasonably require whenconducting a Spot Audit under clause 9.12A; and

(b) procure access to such equipment, information andsystems of the Operator as have been identified in theState's Spot Audit Notice (including any revisionsunder clause 9.12A(d)) and that the State or its agentmay reasonably require when conducting a Spot Auditunder clause 9.12A.

9.14 Damages and Step-In

If the State or its nominee exercises the right vested in theState under clause 9.11 consequent upon the occurrence ofan Operating Default, Clepco shall not be liable in damagesto the State for the particular failure to perform an obligationwhich comprised part of that Operating Default. Theexercise of that right shall not, however, otherwiseextinguish, qualify or limit any other right, remedy or powerof the State.

9.15 Use of Electronic Devices

The State shall use its best endeavours to ensure that, withina 100 metre exclusion zone around each of the tollinggantries for the Exhibition Street Extension, the radiofrequency power output of any device is limited to 1 Watt


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RMS within the frequency range of 5.725 GHz and 5.875GHz.

9.16 Emergency Exercisescxlxxvii

(a) During the Concession Period, Clepco will conduct:

(i) an Annual Emergency Exercise at least once ayear, other than in a year where a TriennialEmergency Exercise is conducted; and

(ii) a Triennial Emergency Exercise at least onceevery three years,

from the Operative Date (as defined in the ESEPSeventh Amending Deed) of the ESEP SeventhAmending Deed in conjunction with the EmergencyServices and other relevant organisations.

(b) Clepco, together with the Operational Committee,must review in light of, and to address issues arisingout of, Annual Emergency Exercises and TriennialEmergency Exercises, the Operation and MaintenanceManuals, Operations Quality Plan, EmergencyManagement Plan and Incident Management QualityPlan at least once every twelve months from theOperative Date (as defined in the ESEP SeventhAmending Deed) of the ESEP Seventh AmendingDeed during the Concession Period.

9.17 Towing of vehicles and debris

Clepco will be relieved of its incident clearance obligations under this Deed to the extent it is prevented from complying due to an Accident Towing Licence Event.

9A. KPI ASSESSMENT AND LIABILITY

9A.1 KPI Assessment System

(a) Clepco must:

(i) [not used]; and

(ii) from the end of the CityLink Original Concession Period, in respect of the Operations and Maintenance KPIs,

establish, develop and administer appropriate and effective processes to capture, measure, record, report and assess Clepco’s performance against the


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relevant KPI Benchmarks (KPI Assessment System).

(b) Clepco must ensure that the KPI Assessment System is established, developed and administered in accordance with the standards that would be maintained by a Good Practice Operator.

9A.2 Achievement of KPI Benchmark

(a) (Achievement of KPI Benchmarks): Clepco must use its best endeavours to achieve:

(i) [not used]; and

(ii) the KPI Benchmarks in respect of Operations and Maintenance KPIs from the end of the CityLink Original Concession Period.

(b) (No limitation on other standards or requirements): For the avoidance of doubt, the parties acknowledge and agree that:

(i) some KPIs and KPI Benchmarks reflect standards or requirements set out in the ESEP O & M Requirements or elsewhere in this Deed; and

(ii) subject to clause 9A.8, Clepco’s obligation to achieve these standards or requirements is not limited or affected by the KPI Regime.

9A.3 Requirements of KPI Assessment System

(a) (KPI Assessment System): The KPI Assessment System must from the end of the CityLink Original Concession Period in respect of the Operations and Maintenance KPIs:

(i) monitor the operations or maintenance activities which are subject to the KPI Regime;

(ii) be capable of recording all incidents, events or circumstances in which the activities which are subject to the KPI Regime do and do not achieve the relevant KPI Benchmark with sufficient particularity to permit unique identification of:


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(A) the incident, event or circumstance;

(B) the date, time and location of the incident, event or circumstance; and

(C) the action taken to remedy the incident, event or circumstance (where relevant);

(iii) detail Clepco’s achievement or otherwise of a KPI Benchmark in each Assessment Period, including the actual performance standard achieved for each KPI, the amount of KPI Points incurred and any other information that the State reasonably requires in relation to the applicable KPI; and

(iv) collect and store all source information, documentation, reports and data relevant to Clepco’s performance in relation to the KPI Benchmarks (including the information contemplated by Schedule 7).

(b) (Copy of KPI Data): To the extent permitted by Law, a copy of all KPI Data must be kept and maintained by Clepco for 3 years after it is created, produced or prepared.

(c) (Accuracy and fitness for purpose): Clepco must ensure that from the end of the CityLink Original Concession Period in respect of the Operations and Maintenance KPIs:

(i) the KPI Data will at all times be accurate, complete and correct; and

(ii) the KPI Assessment System will be at all times fit for its intended purpose.

(d) (Co-operation with the State): Subject to the State providing reasonable prior notice to Clepco, Clepco must fully and promptly co-operate with the State to, and must procure that its Associates fully and promptly co-operate with Clepco in order to enable Clepco to, provide the State with access to, and copies of, the KPI Assessment System and the KPI Data.


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9A.4 Audit

(a) (Provision of audit report): Clepco must provide to the State:

(i) [not used]; and

(ii) in respect of the Operations and Maintenance KPIs within 45 Business Days of the end of each financial year after the end of the CityLink Original Concession Period,

an audit report, prepared by an independent and reputable auditor appointed by or on behalf of Clepco, who has audited the accuracy, completeness and correctness of the Quarterly KPI Reports and Annual KPI Report, and the fitness for intended purpose of the KPI Assessment System for that financial year.

(b) (State may require audit): At any time up to 12 months following the end of the Concession Period, the State may give notice to Clepco requiring an audit of the Quarterly KPI Reports, the Annual KPI Reports or the KPI Assessment System (KPI Audit Notice) for the purpose of reviewing the Quarterly KPI Reports, the Annual KPI Reports and the KPI Assessment System and verifying their accuracy, correctness and completeness and fitness for intended purpose (as applicable).

(c) (KPI Audit): If the State gives a KPI Audit Notice under clause 9A.4(b):

(i) the State will appoint, and notify Clepco of, a person to carry out and complete the audit (KPI Auditor), at the State's cost and expense, on terms and conditions of appointment determined by the State;

(ii) Clepco must, within a reasonable period, make the KPI Data available to the KPI Auditor, and make the Quarterly KPI Reports, Annual KPI Reports and the KPI Assessment System available for audit by the KPI Auditor and provide all necessary assistance to the KPI Auditor consistent with the requirements of this clause 9A, and


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Clepco must procure that its Associates, fully and promptly co-operate with the KPI Auditor; and

(iii) Clepco must provide such access to their senior management and other relevant personnel and procure such access to Clepco’s auditor appointed under clause 9A.4(a) as the KPI Auditor may reasonably require for the purpose of conducting its functions set out in clause 9A.4(b).

(d) (Quarterly KPI Report or Annual KPI Report not accurate): If the report of the KPI Auditor or the report prepared by the auditor under clause 9A.4(a) (each a KPI Auditor's Report) concludes or reports that a Quarterly KPI Report or Annual KPI Report is not accurate, complete or correct, or that the KPI Assessment System is not fit for its intended purpose, then Clepco must:

(i) rectify the inaccuracy, incorrectness, incompleteness or lack of fitness for intended purpose (as applicable) in the affected data, report or system and reissue the data or report to the State or advise the State of any change to the system;

(ii) reassess any KPI Event affected by the inaccurate, incorrect or incomplete data or report or lack of fitness for intended purpose in the affected system, and notify the State of and pay for any necessary adjustment to the KPI Points or the KPI Liability (as applicable); and

(iii) to the extent the reassessment of a KPI Event under clause 9A.4(d)(ii) results in a requirement for Clepco to make a payment to the State, pay the costs and expenses of the KPI Auditor or reimburse the State for any costs and expenses of the KPI Auditor incurred by the State (in either case, to the extent those costs and expenses relate to an audit by the KPI Auditor of the Quarterly KPI Reports, the Annual KPI Reports or the KPI Assessment System in accordance with this clause 9A.4), within 20 Business Days


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of a request being made by the State which is accompanied by a valid tax invoice.

9A.5 Acknowledgement

Subject to clause 9A.8, the terms of Schedule 7, including obligations in respect of monitoring and reporting, do not limit or otherwise affect Clepco’s obligations under this Deed.

9A.6 Payment of KPI Liability

A KPI Liability will be calculated in accordance with sections 2 and 3 of Part B of Schedule 7 and paid by Clepco in accordance with section 5 of Part B of Schedule 7 into a community fund established and administered by the State, details of which will be notified to Clepco prior to the WGT Date of Tolling Completion.

9A.7 Review of KPI Regime

(a) (Review of KPI Regime and KPI Benchmarks): Upon the occurrence of each consecutive 5 year period following the WGT Date of Tolling Completion, Clepco must, in consultation with the State, review:

(i) the KPI Regime; and

(ii) whether the KPI Benchmarks imposed by the KPI Regime are consistent with the standards that would be maintained by a Good Practice Operator, the nature of the activities that are subject to the KPI Regime, and how those activities are being performed.

(b) (Changes to KPI Regime): The parties must negotiate in good faith to determine and agree in writing the necessary changes to the KPI Regime (if any) arising from the review under clause 9A.7(a), provided that such changes:

(i) are consistent with the standards that would be maintained by a Good Practice Operator;

(ii) other than with the consent of the State, do not result in the KPI Regime and KPI Benchmarks specifying a standard that is less than the standard that Clepco is


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otherwise required to comply with in accordance with this Deed; and

(iii) have been considered in the context of the whole KPI Regime.

(c) (Effect of change) The parties acknowledge and agree that any changes to the KPI Regime as contemplated under this clause 9A.7 will take effect on the date the parties agree to the relevant changes in writing (or such other date agreed by the parties).

9A.8 Payment under KPI Regime is the sole remedy

(a) (KPI Liability only monetary compensation): Subject to clauses 9A.8(b) and 9A.9, the KPI Liability (if any) paid in accordance with section 5 of Part B of Schedule 7 will be the only monetary compensation payable by Clepco to the State in relation to the events or circumstances giving rise to a KPI Event.

(b) (Exceptions): Clause 9A.8(a) does not limit or exclude:

(i) Clepco’s liability to the State, or any other rights and remedies of the State:

(A) under the Handover Clauses;

(B) under clause 9.11 on exercise of the State's step-in rights in connection with a breach of the KPI Regime;

(C) to indemnify the State or any of its Associates under clause 13.2 to the extent that the State has not already been fully compensated for any such claim or liability by the amount of any KPI Liability under clause 9A.8(a) (excluding for any loss of availability or any unavailability of the Exhibition Street Extension or internal costs of the State or any of its Associates relating to the events or circumstances giving rise to the KPI Event); or


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(D) in respect of liability suffered or incurred by the State as a result of a fraudulent, reckless, unlawful or malicious act or omission or wilful misconduct of Clepco;

(ii) the State's rights under clause 13.7 in respect of Clepco’s obligation to repair and reinstate the Exhibition Street Extension;

(iii) the State's or any of its Associate's entitlement to a claim under this Deed or at Law in respect of:

(A) any third party damage; or

(B) any personal injury or death,

for which Clepco or any of its Associates are liable;

(iv) the State's or any of its Associate's entitlement to recover any costs or expenses incurred by them as a consequence of the State exercising its rights under clauses 9.11 or 15;

(v) any payments on termination as set out in clause 15.4;

(vi) [not used];

(vii) any other right or remedy of the State under this Deed or any other ESEP Project Document or at Law in relation to any non-monetary compensation.

(c) (No Event of Default or Project Default): Without limiting the monetary compensation payable by Clepco in accordance with clause 9A.8(a) (if any), the parties agree that Clepco’s failure to comply with, or breach of, any of its obligations or levels of service under the KPI Regime (including the accrual of KPI Points in excess of any KPI Points Cap) will not be considered to be a breach of this Deed, an Event of Default or Project Default or an event or circumstance that would otherwise entitle the State to terminate, rescind or repudiate this Deed, and the State will not in such circumstances terminate, rescind or repudiate this Deed.


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(d) (KPI Cap Default): Within 20 Business Days after the occurrence of a KPI Cap Default:

(i) unless Clepco considers (acting reasonably) that the events or circumstances that gave rise to the KPI Cap Default cannot be rectified on commercially reasonable terms, Clepco must provide to the State a plan and program that is satisfactory to the State (acting reasonably) for the remediation of, or to prevent the reoccurrence of, the events or circumstances that gave rise to the KPI Cap Default and diligently pursue the implementation of that plan or program; or

(ii) if Clepco considers (acting reasonably) that the events or circumstances that gave rise to the KPI Cap Default cannot be rectified on commercially reasonable terms, Clepco must provide to the State a report which sets out:

(A) an explanation as to why it is of that view; and

(B) the measures that have been or will be implemented by Clepco for the remediation of, or to prevent the reoccurrence of, the events or circumstances that gave rise to the KPI Cap Default to the extent possible on commercially reasonable terms.

(iii) (Variation Proposal) Without limiting clause 9A.8(d)(ii), if Clepco considers (acting reasonably) that the events or circumstances that gave rise to the KPI Cap Default cannot be rectified on commercially reasonable terms, Clepco may propose a Variation Proposal under clause 9A.11.

9A.9 Payment of KPI Liability for a breach of the KPI Regime

The State and Clepco acknowledge and agree that:

(a) it is difficult, and in some instances impossible, to calculate with precision the diminution in value the State or users of the Exhibition Street Extension may suffer in connection with a KPI Event;


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(b) notwithstanding clause 9A.9(a), the application of the KPI Regime associated with a KPI Event reflects a genuine pre-estimate of the diminution in value of the applicable activities to the State or users of the Exhibition Street Extension in connection with such KPI Event and associated costs;

(c) both the State and Clepco require a formula for calculation of that diminished value to the State and the users of the Exhibition Street Extension that is able to be readily applied without unnecessary administrative costs, delay or difficulty;

(d) it is in the economic interests of both parties that a formula of the nature referred to in clause 9A.9(c) be adopted and the KPI Regime meets the requirements of such a formula;

(e) the State and Clepco have agreed to execute amendments to this Deed on the basis of and in reliance on the acknowledgements given by the other party in this clause 9A.9;

(f) to the extent permissible:

(i) they exclude and waive any right to the benefit of the application of any legal rule or norm, including under statute, equity and common law, relating to the enforceability of the KPI Regime; and

(ii) they will not raise or allege in any dispute or proceedings (including a claim by the State under or relating to the KPI Regime), any argument or defence relating to the enforceability of the KPI Regime; and

(g) to the extent the KPI Regime (or any part thereof) is held to be void or unenforceable for any reason, the State will be entitled to claim at Law as a result of the KPI Event, provided that Clepco’s liability at Law will not be any greater than the liability it would have had if the KPI Regime (or any part thereof) had not been void or unenforceable.

9A.10 Relief from KPI Liability

(a) If an Appendix Event, breach by the State of an ESEP Project Document, relevant event (as defined in clause 15.6), FMS Failure, Utility Interruption or


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Force Majeure Event occurs and results in a circumstance or event giving rise to a KPI Event, then notwithstanding this clause 9A, Clepco will be relieved of the KPI Liability and KPI Points will not accrue in relation to the KPI Event, to the extent the KPI Event is caused or contributed to by the Appendix Event, FMS Failure, Utility Interruption or Force Majeure Event.

(b) If the State grants Clepco a waiver in respect of any of its rights relating to:

(i) a KPI Event; or

(ii) a circumstance or event giving rise to a KPI Event,

then notwithstanding this clause 9A, Clepco will be relieved of the KPI Liability, and KPI Points will not accrue, in relation to that KPI Event or circumstance or event giving rise to that KPI Event.

9A.11 Relief from KPI Event

(a) (Variation Proposal): If Clepco considers (acting reasonably) that the cause of a KPI Event:

(i) cannot be rectified; or

(ii) cannot be rectified on commercially reasonable terms,

Clepco may propose a Variation Proposal in accordance with clause 7.6(l), provided that the Variation Proposal contains details of a commercial proposal to mitigate or overcome the cause of that KPI Event.

(b) (State response): Subject to clause 9A.11(c), clause 7.6(m) will apply to the Variation Proposal submitted by Clepco under this clause 9A.11.

(c) (State considerations): In considering the Variation Proposal submitted by Clepco under this clause 9A.11, the State must:

(i) act reasonably; and

(ii) have regard to the standards and practices in use on other privately operated roads in Victoria.


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9A.12 [not used]

9A.13 No double up

The parties acknowledge that the Company may discharge Clepco's obligations under the KPI Regime and the State agrees that discharge of such obligations by the Company will constitute full and final discharge of those obligations by Clepco and the State will have no Claim against Clepco in relation to a failure by Clepco to perform those obligations.

10. MAINTENANCE AND REPAIR

10.1 Maintenance and Repairs

(a) Subject to clause 13.6, during the Concession PeriodClepco shall maintain, and shall promptly repair andmake good any damage to or defect in, the ExhibitionStreet Extension to maintain the standards of finish,quality and condition set out or referred to in theESEP Specification, the ESEP O & M Requirementsand the Operation and Maintenance Manuals.

(b) Clepco shall perform its obligations under paragraph(a) in the manner (if any) set out or referred to in theESEP O & M Requirements and the Operation andMaintenance Manuals and in a safe manner so as tominimise the risk of damage caused to any person orproperty.

(c) Paragraph (a) does not apply to the extent that anydamage to or defect in the Exhibition Street Extensionis a consequence of breach by the State of itsobligations under clause 8.3(a) or is one which:

(i) was subsisting at Delivery; and

(ii) if identified at or prior to Delivery, would haveentitled Clepco to refuse to certify that Deliveryhad occurred,

or of any negligent, wilful or reckless act of the State,of any of its nominees or contractors engaged in thecontext of an exercise by the State of its rights underclause 9.11 (or under clause 4.7 of the Master SecurityDeed) or any Victorian Government Agency and theState hereby indemnifies Clepco with respect to any


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loss, cost, expense or damage suffered as a result ofsuch damage or defect. This paragraph (c), however,does not apply insofar as its application would beinconsistent with the acceptance of risk provided forunder, or any representation, warranty, undertaking,waiver or acknowledgement provided for in paragraph4.5(b) or any of clauses 5.2, 7.1, 7.2, 12.2 or 12.7.

(d) For the purposes of this clause the expression "theExhibition Street Extension" includes Plant and theTolling System, and landscaping and improvementsand equipment on land the subject of the Lease, butdoes not include:

(i) ESEP Ancillary Works and Operations; and

(ii) land, improvements or equipment on land thesubject of the Lease insofar as it comprises orthey comprise structures for over-land drainageor underground drainage (other than side entrypits and pipework leading from such pitslocated on elevated structures up to the point ofentry to an underground drainage system).

10.2 Reports

(a) Every 6 months during the Concession Period, Clepcoshall give the State and VicRoads a written report ofall maintenance and repairs carried out on theExhibition Street Extension during the previous 6month period, with details of the procedures andmaterials used.

(b) The report referred to in paragraph (a) shall be in aform reasonably acceptable to the State.

10.3 Inspection

Clepco shall inspect the Exhibition Street Extension at leastonce a month to determine its state of repair.

10.4 Notifications

During the Concession Period, Clepco shall promptly givethe State a detailed written report of:

(a) any material damage to, or defect or disrepair in theExhibition Street Extension of which it (or theCompany) is aware;

(b) the action Clepco proposes to take to remedy thatmaterial damage, defect or disrepair and the estimatedtime the proposed remediation will require; and


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(c) any serious accidents involving injury or damage ofwhich it is aware which occur on the Exhibition StreetExtension.

10.5 Engagement of Contractor

(a) Subject to Clause 10.7, Clepco may sub-contract theperformance of some or all of its obligations underArticle 10 and shall give the State prior noticeincluding reasonable details of the relevantContractor.

(b) The engagement of a Contractor under paragraph (a)will not limit or affect Clepco's obligations or liabilityunder this Deed.

10.6 Key Subcontractors

(a) Subject to clause 10.6(b), Clepco must:

(i) ensure that the Key Subcontractor is engaged in the role specified in the definition of Key Subcontractor (as applicable);

(ii) procure from the Operator (if the Operator is Transurban Vic Op Co Pty Limited ACN 621 893 945) an executed direct deed in the form of the OSA Direct Deed;

(iii) subject to:

(A) Not Used; and

(B) clause 10.6(c) in the case of the Operator,

not replace the Key Subcontractor without the State's prior consent (which will not be unreasonably withheld or delayed); and

(iv) Not Used.

(b) Clepco must not replace the Operator without the State's prior written consent (which will not be unreasonably withheld or delayed).

(c) If Clepco requests the State's consent to replace the Operator in accordance with paragraph 10.6(b), the State must not withhold such consent where:

(i) the State has been provided with:


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(A) details of the proposed replacement subcontractor; and

(B) the terms and conditions on which the proposed replacement subcontractor is to be engaged;

(ii) in the State's reasonable opinion, the proposed replacement subcontractor is a reputable corporation;

(iii) in the State's reasonable opinion, the proposed replacement subcontractor (whether by itself or by way of support from its shareholders in a form acceptable to the State acting reasonably):

(A) has sufficient expertise and ability; and

(B) is of sufficiently high financial and commercial standing,

to properly carry out the obligations which were carried out by the Operator under the relevant ESEP Project Documents;

(iv) the terms and conditions on which the proposed replacement subcontractor is to be engaged are reasonably acceptable to the State;

(v) the proposed replacement subcontractor has agreed to be bound by the terms of the relevant ESEP Project Documents; and

(vi) a person other than the State bears all reasonable costs and expenses (including legal costs and expenses) of and incidental to:

(A) any enquiries which the State may make for the purposes of determining whether to consent to the replacement of the Operator;

(B) the procurement of a replacement subcontractor; and

(C) the preparation, negotiation and execution of any relevant documentation


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and any stamp duty or similar charges in relation to such documentation.

(d) If Clepco provides the Operator OpCo Notice or replaces the Operator in accordance with clause 10.6(c), the State must procure that the Governor in Council, by Order published in the Victorian Government Gazette declares the replacement Operator to be the ‘Extension operator’ for the purposes of the Project Legislation.

10.7 Subcontracting

(a) Clepco must not engage any subcontractor in relation to the ESEP Project, unless the proposed subcontractor has the financial capacity, experience and capability to perform the obligations of Clepco to be subcontracted to at least the standards required under this Deed including the ESEP Specification.

(b) Clepco must ensure that all persons employed or engaged on the ESEP Project hold appropriate qualifications and have received appropriate training for their intended duties, and provide evidence of such qualifications and training to the State as reasonably requested.

(c) If the State notifies Clepco of any person employed or engaged in relation to the ESEP Project who, in the State's reasonable opinion, is incompetent, does not meet the standard required by clause 10.7(b), or is negligent, dishonest, guilty of misconduct or fraud, then Clepco must promptly:

(i) remove the person or ensure that such person is promptly removed from working on the ESEP Project;

(ii) replace the person or ensure that such person is promptly replaced; and

(iii) ensure that the person is not again employed or engaged on the ESEP Project.

(d) Clepco must if the State requires, give the State access to (or copies of, upon request) any proposed or executed subcontract (other than Enterprise-wide Subcontracts) (regardless of whether Clepco is a party to that contract) relating to the operation, maintenance and repair of the Exhibition Street Extension and all


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plans, specifications and drawings relating to that subcontract.

(e) Clepco must not, and must procure that the Operator and its related bodies corporate do not, enter into Enterprise-wide Subcontracts or ESEP Service Agreements which contain exclusivity obligations which would restrict the ability of the State or its nominee to utilise the products, services or rights that are provided under the relevant subcontract for the purposes of the ESEP Project.

10.8 Key Subcontracts and Material Subcontracts

(a) Clepco must not itself amend, terminate, rescind, novate or assign or allow at any time amendment to, or termination, rescission, novation or assignment of a Key Subcontract, Material Subcontract or ESEP Service Agreement without the State's prior consent (which will not be unreasonably withheld or delayed) other than in accordance with the OSA Direct Deed.

(b) Clepco must not, and must procure that the Operator does not, at any time enter into:

(i) a Material Subcontract; or

(ii) an ESEP Service Agreement,

without the State's prior consent, which consent must not be unreasonably withheld or delayed.

(c) If Clepco requests the State's consent in accordance with clause 10.8(a) or (b), the State must not withhold such consent where:

(i) the Material Subcontract or ESEP Service Agreement, or amendment to the Key Subcontract, Material Subcontract or ESEP Service Agreement (as applicable) is on commercial terms which have been negotiated on an arm's length basis; and

(ii) a copy of the Material Subcontract or ESEP Service Agreement, or amendment to the Key Subcontract, Material Subcontract or ESEP Service Agreement (as applicable) has been given to the State.

(d) Clepco must ensure that each Key Subcontract and Material Subcontract includes a clause which provides


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that, if this Deed is terminated in accordance with clause 15 of this Deed:

(i) subject to the terms of the OSA Direct Deed, Clepco, the Operator or other relevant party may terminate the relevant subcontract; and

(ii) Clepco, the Operator or any other relevant party (in the case of Clepco, excluding the Operator and, in the case of the Operator, excluding any subcontractor that has entered into an ESEP Service Agreement) will pay to the relevant subcontractor an early termination amount which is no greater than the aggregate of:

(A) the contract value of the work or services properly executed in accordance with the subcontract up to the date of termination;

(B) reasonable costs and expenses properly incurred up to the date of termination in expectation of completing the work or services under the subcontract;

(C) liabilities to third parties (excluding any related body corporate, other than to the extent the related body corporate is engaged on an arm’s length basis and on commercial terms) for termination; and

(D) 10% of the unpaid balance of the contract sum on account of early termination that would have been payable to the relevant subcontractor in accordance with the subcontract (after deducting the amounts payable in accordance with clauses 10.8(d)(ii)(A) to (d)(ii)(C)) but for the termination, for the 12 month period from the date of the termination,

less the total amounts already paid on account of the contract sum.

(e) Clepco must not engage a subcontractor in respect of a Key Subcontract or a Material Subcontract, unless the Key Subcontract or Material Subcontract (as applicable) contains further provisions expressly recognising and permitting the exercise by the State of


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its rights under, and contains all relevant provisions prescribed by, (if applicable) clauses 2.4(e), Handover Clauses, 9.11, 10.6, 10.8, 13.3, 13.4, 13.5, 14.2A and 19.3.

10.9 Grandfathering

Until the earlier of:

(a) the date on which:

(i) the terms of a Material Subcontract, an Enterprise-wide Subcontract or an arrangement for employment or engagement of any person in relation to the ESEP Project is renegotiated by the parties to it;

(ii) a Material Subcontract, an Enterprise-wide Subcontract or an arrangement for employment or engagement of any person in relation to the ESEP Project is terminated and replaced with a new Material Subcontract, Enterprise-wide Subcontract or an arrangement for employment or engagement of any person in relation to the ESEP Project (as applicable) for the provision of the same type of goods, services or labour (as applicable); or

(iii) the term of a Material Subcontract or Enterprise-wide Subcontract is extended other than in accordance with an existing option to extend; and

(b) the Date of West Gate Tunnel Completion,

the State agrees that Clepco will be relieved of its obligations under:

(c) clause 10.8(e) in respect of that Material Subcontract; and

(d) clause 10.7(c) to the extent that terms of that Material Subcontract, Enterprise-wide Subcontract or arrangement for employment or engagement of any persons on the ESEP Project does not give Clepco the right to require the removal, replacement or restriction on further employment or engagement referred to in that clause.

10.10 Enterprise-wide Subcontracts


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Clepco must within 30 Business Days following:

(a) the Date of West Gate Tunnel Completion; and

(b) thereafter, each anniversary of the Date of West Gate Tunnel Completion,

provide the State with the following information in relation to each Enterprise-wide Subcontract:

(c) the identity of the counterparties to the Enterprise-wide Subcontract; and

(d) the nature of the goods or services provided or to be provided, or rights granted or to be granted, under the Enterprise-wide Subcontract.

10.11 Principal Contractor

(a) Prior to the Date of West Gate Tunnel Completion and other than in connection with the WGT Works:

(i) the State appoints Clepco or the person referred to in clauses 10.11(a)(ii)(A), (B) and (C) to perform or ensure the performance of the role of Principal Contractor in respect of any ‘construction project’ which meets the applicable threshold under the OHS Regulations undertaken in connection with the operation, maintenance and repair activities undertaken in accordance with this Deed and authorises Clepco or the person referred to in clauses 10.11(a)(ii)(A), (B) and (C) to manage and control the worksites on which the operation, maintenance and repair activities undertaken in accordance with this Deed will be performed (and for which the State is the owner for the purposes of the OHS Regulations) to the extent necessary to discharge the duties of a Principal Contractor under OHS Legislation; and

(ii) Clepco accepts the appointment as, and must comply with the obligations of, a Principal Contractor under the OHS Legislation in respect of any 'construction project' which meets the applicable threshold under the OHS Regulations undertaken in connection with the operation, maintenance and repair activities


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undertaken in accordance with this Deed, unless:

(A) another person has the capability and resources to comply with the duties of Principal Contractor under OHS Legislation in respect of that construction project;

(B) Clepco nominates that person to be appointed as Principal Contractor in respect of that construction project and notifies that person of their appointment by operation of this Deed; and

(C) Clepco authorises that person to manage or control the worksites on which the operation, maintenance and repair activities undertaken in accordance with this Deed will be performed (and for which the State is the owner for the purposes of the OHS Regulations), or part thereof, to the extent necessary to discharge the duties of a Principal Contractor under OHS Legislation in respect of that construction project.

(b) On and from the Date of West Gate Tunnel Completion, the State appoints OpCo or the person referred to in clauses 10.11(c)(i), (ii) and (iii) to perform or ensure the performance of the role of Principal Contractor in respect of any ‘construction project’ which meets the applicable threshold under the OHS Regulations undertaken in connection with the operation, maintenance and repair activities undertaken in accordance with this Deed and authorises OpCo or the person referred to in clauses 10.11(c)(i), (ii) and (iii) to manage and control the worksites on which the operation, maintenance and repair activities undertaken in accordance with this Deed will be performed (and for which the State is the owner for the purposes of the OHS Regulations) to the extent necessary to discharge the duties of a Principal Contractor under OHS Legislation.

(c) On and from the Date of West Gate Tunnel Completion, Clepco must ensure that OpCo accepts the appointment as, and complies with the obligations


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of, a Principal Contractor under the OHS Legislation in respect of any ‘construction project’ which meets the applicable threshold under the OHS Regulations undertaken in connection with the operation, maintenance and repair activities undertaken in accordance with this Deed, unless:

(i) another person has the capability and resources to comply with the duties of Principal Contractor under OHS Legislation in respect of that construction project;

(ii) OpCo nominates that person to be appointed as Principal Contractor in respect of that construction project and notifies that person of their appointment by operation of this Deed; and

(iii) OpCo authorises that person to manage or control the worksites on which the operation, maintenance and repair activities undertaken in accordance with this Deed will be performed (and for which the State is the owner for the purposes of the OHS Regulations), or part thereof, to the extent necessary to discharge the duties of a Principal Contractor under OHS Legislation in respect of that construction project.

(d) In respect of any Principal Contractor appointment under clause 10.11(a)(ii)(B) or 10.11(c)(ii), Clepco, or OpCo acting as its nominee, must ensure that the person nominated under clause 10.11(a)(ii)(B) or 10.11(c)(ii):

(i) accepts the appointment as, and complies with the obligations of, a person appointed as Principal Contractor under the OHS Legislation;

(ii) accepts any revised appointment as Principal Contractor that may be necessary as a result of a change in Law which occurs after the date of this Deed; and

(iii) is able to discharge the obligations required of a Principal Contractor.

(e) In respect of any Principal Contractor appointment under clause 10.11(a)(ii)(B) or 10.11(c)(ii), if, for any reason, the entity identified as appointed as Principal


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Contractor is determined at Law to not be validly appointed within the meaning of and for the purposes of the OHS Legislation:

(i) prior to the Date of West Gate Tunnel Completion other than in connection with the WGT Works, Clepco is hereby taken to have been appointed as Principal Contractor in accordance with clause 10.11(a), in respect of the construction project, from its commencement, and Clepco accepts that appointment; and

(ii) on and from the Date of West Gate Tunnel Completion, OpCo is hereby taken to have been appointed as Principal Contractor in accordance with clause 10.11(c), in respect of the construction project, from its commencement, and OpCo accepts that appointment.

11. FINANCE

11.1 BudgetApproach to Relevant Circumstances

(a) Before the Exhibition Street Extension is opened for public use, Clepco shall give to the State a budget in relation to the Maintenance and Repairs Account (referred to in clause 11.2) forIf a Relevant Circumstance arises:

(i) the remainder of the financial year in which the Exhibition Street Extension is opened; and

(ii) the ensuing financial year.

(b) Before 30 June in the financial year in which the Exhibition Street Extension is opened for public use, Clepco shall give to the State:

(i) a revised budget in relation to the Maintenance and Repairs Account (referred to in clause 11.2) for the financial year which will begin on 1 July; and

(ii) a budget in relation to the Maintenance and Repairs Account (referred to in clause 11.2) for the financial year following the financial year which will begin on 1 July.


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(c) Before 30 June in each succeeding financial year, Clepco shall give to the State:

(i) a revised budget in relation to the Maintenance and Repairs Account (referred to in clause 11.2) for the year which will begin on 1 July; and

(ii) a budget in relation to the Maintenance and Repairs Account (referred to in clause 11.2) for the financial year following the financial year which will begin on 1 July.

(d) Each budget shall specify authorised expenditure for each item referred to in clause 11.2(b).

11.2 Maintenance and Repairs Account

(a) On or before the Exhibition Street Extension is opened for public use Clepco shall:

(i) establish an account to be known as the Maintenance and Repairs Account and thereafter maintain that account with a financial institution nominated by Clepco and approved by the State (such approval not to be unreasonably withheld) or with a financial institution which is a party to the Master Security Deed;

(ii) give details of that account to the State; andparties must promptly meet to discuss the manner in which a payment made by Clepco will or is likely to be treated for income tax purposes from the perspective of the relevant taxpayer. For the avoidance of doubt, if Clepco is a subsidiary member of a tax consolidated group, the relevant taxpayer will be the head company of that tax consolidated group;

(ii) Clepco must notify the State if it considers that there is a material risk of the amounts not being deductible, including having regard to previous private rulings from the Commissioner of Taxation in relation to similar circumstances, issues or questions of law;

(iii) notify the financial institution referred to in sub paragraph (i) of the charge over the Maintenance and Repairs Account in accordance with the ESEP Deed of Charge. the State may notify Clepco no later than 20


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Business Days prior to the first Relevant Circumstances Payment Date in respect of that Relevant Circumstance whether it requires a private ruling to be sought from the Commissioner of Taxation to confirm whether the Relevant Circumstances Amount is deductible for income tax purposes and if the State fails to notify Clepco by that date, the State will be deemed to have notified Clepco that a private ruling is to be sought from the Commissioner of Taxation to confirm whether the Relevant Circumstances Amount is deductible for income tax purposes;

(b) The balance of the Maintenance and Repairs Account shall at all times be sufficient to fund periodic maintenance and capital works expenditure including:

(i) significant maintenance expenditure, including pavement resurfacing or rejuvenation;

(ii) upgrading of the Tolling System to comply with the requirements of this Deed;iv) Clepco must comply with a notice from the State under clause 11.1(a)(iii); and

(iii) other capital equipment replacement costs; and

(iv) maintenance expenditure,

budgeted to be incurred in the next 12 month period.

(v) the State will provide reasonable assistance to Clepco to enable a private ruling to be sought from the Commissioner of Taxation to confirm whether the Relevant Circumstances Amount is deductible for income tax purposes, and Clepco will have regard to any reasonable comments or requests of the State in relation to the form or content of the private ruling request.

(b) If, on a Relevant Circumstances Payment Date:

(i) the State notifies or is deemed to have notified Clepco under clause 11.1(a)(iii) that it requires a private ruling to be sought from the Commissioner of Taxation to confirm whether the Relevant Circumstances Amount is deductible for income tax purposes but the Commissioner of Taxation has not ruled on the application; or


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(ii) the State has not required a private ruling to be sought in relation to the Relevant Circumstances Amount and Clepco considers that there is a material risk of the amounts not being deductible, including having regard to previous private rulings from the Commissioner of Taxation in relation to similar circumstances, issues or questions of law,

then:

(iii) Clepco must pay the portion of the Relevant Circumstances Amount equal to a factor of one minus the then current applicable tax rate on the Relevant Circumstances Payment Date;

(iv) where clause 11.1(b)(i) applies, Clepco's obligation to pay the remainder of the Relevant Circumstances Amount on the Relevant Circumstances Payment Date will be deferred until the later of the date that is 20 Business Days after the earlier of the date on which the Commissioner of Taxation:

(A) issues a private ruling confirming that the Relevant Circumstances Amount is deductible for income tax purposes; or

(B) notifies the applicant of the private ruling that the Commissioner of Taxation declines to hear or rule on the application for the private ruling; and

(v) where clause 11.1(b)(ii) applies, Clepco will not be required to pay the remainder of the Relevant Circumstances Amount unless Clepco, or the head company of the tax consolidated group of which Clepco is a subsidiary member, lodges a tax return with the Australian Taxation Office that claims an amount of the Relevant Circumstances Amount as deductible for income tax purposes in which case Clepco must pay the remainder of the Relevant Circumstances Amount within 20 Business Days of the date that the relevant tax return is lodged with the Australian Taxation Office.

(c) Clepco must pay to the State interest on the remainder of any Relevant Circumstances Amount that is


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payable in accordance with clause 11.1(b)(iv) or clause 11.1(b)(v) (as applicable):

(i) from the date on which the portion of the Relevant Circumstances Amount was paid under clause 11.1(b)(iii) until the date on which the remainder of the Relevant Circumstances Amount is paid in accordance with clause 11.1(b)(iv) or clause 11.1(b)(v) (as applicable); and

(ii) calculated on daily balances at the Reference Rate.

(d) The State acknowledges and agrees that payments deferred pursuant to clause 11.1(b)(iv) may not be set-off against any amounts payable by the State and will not be payable on termination of this Deed other than to the extent such amounts have become payable in accordance with clause 11.1(b)(iv).

(e) If the State notifies or is deemed to have notified Clepco that a private ruling from the Commissioner of Taxation is required in accordance with clause 11.1(a)(iii), and following the application for a private ruling, the Commissioner of Taxation:

(i) rules that the Relevant Circumstances Amount is not deductible for income tax purposes, then the Relevant Circumstances Amount payable to the State will be adjusted by a factor of one minus the then current applicable tax rate;

(ii) rules that the Relevant Circumstances Amount is deductible for income tax purposes, then the Relevant Circumstances Amount payable to the State will not be adjusted and clause 11.1(b)(iv) will apply; or

(iii) declines to hear or rule on the application for the private ruling, then the Relevant Circumstances Amount will not be adjusted and clause 11.1(f)(ii) will apply.

(f) If:

(i) the State notifies Clepco that no private ruling from the Commissioner of Taxation is required in accordance with clause 11.1(a)(iii); or


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(ii) the Commissioner of Taxation declines to hear or rule on the application for private ruling as contemplated by clause 11.1(e)(iii),

and Clepco, or the head company of the tax consolidated group of which Clepco is a subsidiary member, subsequently incurs a tax liability as a result of:

(iii) lodging a tax return with the Australian Taxation Office that claimed an amount of the Relevant Circumstances Amount as deductible for income tax purposes; and

(iv) the Commissioner of Taxation determining that an amount of the Relevant Circumstances Amount claimed as a deduction is not tax deductible for income tax purposes in that period,

the State must (to the extent that it has received the Relevant Circumstances Amount in full from Clepco) pay to Clepco an amount equal to the net amount, including taxes, fines, penalties and/or interest, payable to the Commissioner of Taxation by Clepco (or the head company of the tax consolidated group of which Clepco is a subsidiary member) as a consequence of the Relevant Circumstances Amount not being deductible for income tax purposes (Relevant Circumstances Tax Liability) within 20 Business Days of receiving a notice under clause 11.1(g).

(g) Clepco must notify the State as soon as reasonably practicable:

(i) that it, or the head company of which it is a subsidiary member, has incurred a tax liability as contemplated by clause 11.1(f);

(ii) the breakdown of the calculations to determine the Relevant Circumstances Tax Liability; and

(iii) any other information reasonably requested by the State to allow it to verify the Relevant Circumstances Tax Liability.


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(c) Moneys in the Maintenance and Repairs Account may only be applied for periodic maintenance and capital works expenditure (including the purposes specified in paragraph (b)).11.2 [Not used]

11.3 Insurance Proceeds Account

(a) Not later than 5 Business Days after the date of Delivery (for this purpose clause 8.2(h)(ii) shall not applyDate of Parliamentary Support (CityLink),Clepco shall establish an account to be known as theInsurance Proceeds Account and thereafter maintainsuch account in its name and, whilst the Project Debt, CTW Project Debt or the WGT Project Debt isoutstanding, in the name of the Security Trustee with afinancial institution nominated by Clepco andapproved by the State (such approval not to beunreasonably withheld) or with a financial institutionwhich is a party to the Master Security Deed.

(b) Each of Clepco and the State shall deposit any amountit receives under any insurance policy taken out incompliance with clause 13.3(a)(i) of this Deed (otherthan insofar as any such amount comprisescompensation for loss of revenue) into Clepco'sInsurance Proceeds Account.

(c) If insurance proceeds of policies taken out incompliance with clause 13.3(a)(i) of this Deed arepaid, those proceeds are to be applied for the repairand reinstatement of the Exhibition Street Extensionor relevant part thereof in accordance with this Deed,subject however to the provisions of the MasterSecurity Deed.

(d) The non-application of insurance proceeds of the typeto which paragraph (c) applies in the mannerdescribed in that paragraph as a result of the operationof clause 7.2 of the Master Security Deed is deemedto give rise to a Material Adverse Effect.

11.4 Taxes

Subject to clauses 4.8 and 12.6, Clepco shall pay all Taxeslevied on it and all Taxes properly charged to it by referenceto the ownership or occupation of ESEP Land or theoperation of the Exhibition Street Extension.

11.5 Stamp Duty


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(a) Subject to paragraph (b), as between the State andClepco, Clepco will pay or procure the payment of allstamp duties and other Taxes and fees levied orpayable in respect of the ESEP Project Documents orany transaction or instrument contemplated in any ofthem.

(b) The State shall indemnify Clepco against any stampduty which Clepco is required by a VictorianGovernment Agency to pay:

(i) on the Lease, insofar as:

(A) the amount of the duty required to be sopaid exceeds the amount that would bechargeable under the Law in force inVictoria at the date of this Deed; and

(B) the requirement to pay the duty arisespursuant to Victorian legislativeprovisions enacted after the date of thisDeed and prior to the expiration of 6months from the date the Lease iscompleted by the State (under clause4.7(c) of this Deed) in order to giveeffect to proposals reflected in a"rewrite" of stamp duty legislationreleased for comment by the VictorianState Revenue Office (and certain otherGovernment Agencies) on 31 July 1995and expected as at the date of this Deedto be enacted to commence operation on1 July 1998 (or as such proposals may beredrafted by such Government Agenciesor varied during the process of publicconsultation contemplated by the"rewrite" or the process of passage of thelegislation by the Victorian Parliament);

(ii) on any mortgage:

(A) made by Clepco over its interest in theLease;

(B) made at or around the time of the grant ofthe Lease;

(C) insofar as the amount of stamp dutyrequired to be paid on the mortgage is inexcess of the amount that would be


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chargeable under the Law in force inVictoria at the date of this Deed; and

(D) insofar as the requirement to pay the dutyarises under Victorian legislativeprovisions enacted after the date of thisDeed in order to give effect to proposalsreflected in the "rewrite" of stamp dutylegislation referred to in sub-paragraph(i) (or as such proposals may be redraftedby Government Agencies or variedduring the process of public consultationcontemplated by the "rewrite" or theprocess of passage of the legislation bythe Victorian Parliament).

11.6 Certificate

A statement given by a party certifying an amount payableby another party under this Deed or another ESEP ProjectDocument shall be prima facie evidence of the amount thatis due and owing by that other party.

11.7 Interest

If Clepco or the State does not pay any amount owing underan ESEP Project Document to the other party to thatdocument by the due date, it shall pay to that person ondemand interest on that amount at the Default Rate from thedue date for payment until payment is made in full beforeand (as a separate and independent obligation) afterjudgment or award. Interest so payable shall be calculatedwith daily rests and capitalising periodically, with the periodbeing selected by the person to whom the interest is payable,but not being more frequent than monthly. A capitalisedamount shall be due for payment on the date it is capitalisedand shall bear interest under this clause until paid in full.

12. LIABILITY AND RISKS

12.1 Traffic Usage

Neither the State nor any Victorian Government Agencymakes on or before the date of this Deed any representationor gives any warranty in respect of traffic usage of theExhibition Street Extension or any matter that does or mightaffect traffic usage.

12.2 Disclaimer


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(a) Subject to clauses 7.9(b), 8.3 and 14.1, Clepcoacknowledges that neither the State nor any VictorianGovernment Agency or Utility has:

(i) made any representation;

(ii) given any advice; or

(iii) given any warranty,

of any kind in respect of a matter relevant to Clepco'sassessment or undertaking of the ESEP Project orClepco's decision to enter into any of the ESEPProject Documents or Transaction Documents or inrespect of any information or data of the typeidentified in clause 7.1 supplied or made available bythe State, or any Victorian Government Agency orUtility.

(b) Clepco warrants that, subject to clauses 7.9(b), 8.3and 14.1 it:

(i) has not relied on any information, data or othermaterial referred to in paragraph (a) andwithout limitation has not relied on any suchinformation, data or material in assessing orundertaking the ESEP Project or in enteringinto any of the ESEP Project Documents orTransaction Documents;

(ii) has relied on its own investigations andenquiries in relation to the accuracy, suitabilityand completeness of that information ormaterial; and

(iii) is aware that the State relied on this warranty inentering this Deed.

(c) Subject to clause 7.9(b) and 8.3, Clepco waives anyright which it has at the date of this Deed or may haveat any later time to bring any action or make any claimagainst the State or a Victorian Government Agencyor Utility arising (directly or indirectly) out of anyalleged negligent act or omission on the part of theState or such Government Agency or Utility inconnection with any matter referred to in paragraph(a).

(d) The provisions of clauses 7.1, 7.2, 12.1 and this clauseprevail over any inconsistent Victorian Law, and tothe extent of any inconsistency, that Law is modified


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accordingly. This paragraph (d) does not apply tomatters occurring (including warranties made orinformation provided) after the date of this Deed.

12.3 Risks

Except in relation to:

(a) obligations or responsibilities expressly undertaken bythe State;

(b) the occurrence of events or the existence ofcircumstances reflecting the crystallisation of risksaccepted, or the occurrence of matters or eventsresponsibility for which has been accepted, by theState under the ESEP Project Documents;

(c) the execution of the Exhibition Street ExtensionWorks; or

(d) the adequacy of the design of the Exhibition StreetExtension Works, in terms of achieving the physicalparameters of the Exhibition Street Extensionreflected in the ESEP Specification (but not, forexample, the adequacy of that design or of thosephysical parameters in terms of traffic carryingcapacity),

Clepco accepts all risks relating to the ESEP Project,including (and subject to) the following:

(e) subject to clauses 2.9, 2.10, 3.4 and 7.7, the actualcost of the ESEP Project (including inflation, costincreases and rates of interest) being greater than thecost estimated;

(f) subject to clauses 2.9, 2.10, 3.4 and 7.7, the trafficflow on the Exhibition Street Extension being lessthan estimated or not being economically viable;

(g) subject to clauses 2.9, 2.10, 3.4 and 7.7, the revenuegenerated from the Exhibition Street Extension beingless than estimated;

(h) land or interests in land additional to the ESEP Land,or rights of access to land additional to those affordedunder clauses 4.2 and 8.5, being necessary to enablecompliance with the provisions of this Deed;

(i) technical obsolescence occurring in relation to thePlant, the Tolling System or otherwise in relation toequipment or systems used in the operation,


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maintenance or repair of the Exhibition StreetExtension;

(j) the Tolling System not operating effectively inaccordance with its intended purpose as specified inthis Deed and the ESEP O & M Requirements;

(k) subject to clauses 2.9 and 2.10 (in relation to items 4and 5 of the Appendix) and to clauses 12.8 and 14.1,any Law (now or in the future) affecting the nature orextent of its rights or obligations under the ESEPProject Documents or Transaction Documents or itsability to exercise those rights or perform thoseobligations;

(l) subject to clauses 2.9, 2.10, 3.4 and to clause 15.6 therisk of industrial action;

(m) subject to clause 3.4, inclement weather causing theincurring of delay, increased cost or decreasedrevenue;

(n) subject to this Deed, changes to the Exhibition StreetExtension Works causing the incurring of delay,increased cost or decreased revenue;

(o) subject to clauses 2.9 and 2.10 (in relation to item 1 ofthe Appendix) and to clauses 3.2(b) and 3.4, delay inGovernment Agencies granting usual building permitsand construction approvals for construction causingthe incurring of delay, increased cost or decreasedrevenue; and

(p) subject to clause 13.4, the ability to obtain andmaintain insurances in accordance with Article 13,

and Clepco shall not make any claim for damage, loss,expense or seek to be indemnified for any liability from theState arising from any such risk having eventuated.

12.4 Indemnities

To the maximum extent permitted by Law, Clepcoindemnifies the State and each Victorian GovernmentAgency against any claim, demand, damage, expense, loss orliability brought against or suffered, incurred or payable byeither of the State or any Victorian Government Agencyarising out of or in connection with:

(a) any defect in the Exhibition Street Extension whicharises as a result of any of the matters, information,data or material referred to in clause 12.2(a) other


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than a defect arising out of, or in connection with, theState's obligations under clause 8.3; and

(b) subject to clauses 7.9(b) and 8.3, use of or relianceupon any of the following by Clepco or any of theContractors:

(i) any of the matters, information, data or materialreferred to in clause 12.2(a); or

(ii) the Proprietary Documentation.

12.5 Indemnity held on Trust

The State and Clepco each declares and acknowledges that:

(a) each indemnity referred to in clause 12.4 in favour ofVictorian Government Agencies is held on trust by theState for the benefit of Victorian GovernmentAgencies from the date of this Deed; and

(b) the consent of a Victorian Government Agencyreferred to in paragraph (a) shall not be required forany amendment to, or waiver of rights under, an ESEPProject Document.

12.6 Rates

The State indemnifies Clepco in respect of any liability topay:

(a) local government rates imposed on it with reference tothe ESEP Land;

(b) water and sewerage rates, but only to the extent of anyland component of such rates; or

(c) Taxes charged by reason of the ownership oroccupation of any part of ESEP Land on which islocated fixtures, fittings or structures forming part ofESEP Ancillary Works and Operations.

12.7 Clean-up Notices

(a) Subject to paragraph (b) the State indemnifies Clepcofor the reasonable costs of complying with a clean-upnotice issued by the EPA under section 62A(1)(a) ofthe Environment Protection Act (including cleaningup pollution in accordance with such notice) or ofcleaning up pollution the continued existence of whichis likely to result in the issue of such a notice, inrespect of pollution on any part of the ESEP Land orany land to which Clepco has access under clause 4.2or 8.5 ("the Polluted Land") where:


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(i) the State, a Victorian Government Agency or anoccupier of the Polluted Land (while inoccupation) caused or permitted the pollution tooccur before the date on which Clepco takespossession of that land; or

(ii) the pollution was caused or permitted by anESEP Ancillary Works Contractor.

(b) For the purpose of this clause 12.7 and Item 2 ofcolumn 1 of the Appendix:

(i) pollution includes contamination;

(ii) Clepco shall have the onus of proving in eachinstance that any particular pollution of landreferred to in paragraph (a) existed on that landbefore the date on which Clepco takespossession of that land or was caused orpermitted by an ESEP Ancillary WorksContractor; and

(iii) subject to compliance with sub-paragraph (ii),the State shall have the onus of proving that thepollution was not caused or permitted by theState, a Victorian Government Agency or anoccupier of that land (while in occupation).

(c) It is agreed that any amounts paid or payable by theState under this clause cannot be claimed by Clepcowhen seeking any redress pursuant to clauses 2.9 and2.10.

12.8 Prevention by Law

(a) In this clause:

(i) "Current Victorian Law" means a Law of theState of Victoria in force as at the date of thisDeed;

(ii) "Current Commonwealth Law" means a Law ofthe Commonwealth in force at the date of thisDeed; and

(iii) "Current Law" means Current Victorian Lawand Current Commonwealth Law.

(b) Subject to paragraphs (c) and (d), the State accepts therisk of:

(i) Current Law, insofar as it is relevant to theState's power to execute, deliver and perform


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the ESEP Project Documents (but it does notaccept this risk insofar as it relates to clause 2.8other than to the extent provided underparagraph (b)(ii)); and

(ii) Law to the extent that it prevents absolutely(regardless of the application of financial ortechnical resources) Clepco from doing thatwhich is described in paragraphs 1, 2, 3 or 4 ofExhibit P to the City Link Concession Deed asif the description in paragraph 1 of the WORKSwere a description of the ESEP ETTM Works,and as if references in paragraphs 3 and 4 to"the Link" were references to the ExhibitionStreet Extension.

(c) The State's acceptance of the risk outlined insub-paragraph (b)(ii):

(i) only applies in the context of the State'sobligation under paragraph (e) below; and

(ii) is inapplicable where Clepco is absolutelyprevented from doing the relevant thing by Lawas a result of:

(A) a breach of an ESEP Project Documentby Clepco; or

(B) the lack of legal capacity or corporatepowers of, or breach of duty by Clepco.

(d) If Clepco claims that a risk borne by the State undersub-paragraph (b)(ii) has crystallised, it shall notifythe State of that claim. The parties shall endeavour, ingood faith, to agree whether the claim is valid. Ifagreement as to this matter is not reached within 20Business Days of the State's receipt of the relevantnotice, either party may refer the matter for expertdetermination under Article 16.

(e) If it is agreed or determined that such a risk hascrystallised the State shall as soon as practicable(having regard to the measure selected) do at least oneof the following (to be considered by the State andClepco in the following order but with the selection ofany particular measure at the State's discretionexercised in good faith having regard to matters itconsiders relevant, including the likely taxation andother consequences for Clepco):


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(i) pass or procure the passage of legislation whichresults in the thing absolutely prevented ceasingto be absolutely prevented;

(ii) if the State and its agents can do the thing whichClepco is absolutely prevented from doing,acquire such rights and interests in the ESEPProject as may be necessary or desirable toenable or facilitate it or its agents to do thatthing and appoint Clepco the agent of the State(and so through it the State does that whichClepco is otherwise prevented from doing) (butthe State agrees that this measure may only beselected if the economic value to the Lenders,the Security Trustee and the Agent of thecharges and mortgages that will be available tosecure Project Debt after adoption of themeasure is substantially the same as theeconomic value they derived from the Securities(within the meaning of the Master SecurityDeed) prior to crystallisation of the relevantrisk);

(iii) if the thing absolutely prevented relates totolling, levy tolls in relation to the ExhibitionStreet Extension by, amongst other things,electronically identifying those vehicles thepassage of which attracts tolls or allocate to theESEP Project the proceeds of a new Tax or anexisting (or component of an existing)Tax;cxlxxviii

(iv) acquire the ESEP Project for the EarlyTermination Amount applicable at the time ofthe election; or

(v) implement any other remedy agreed by theparties (in their absolute discretion).

(f) If under paragraph (e) the State elects to:

(i) appoint Clepco agent of the State to operate andmaintain the ESEP Project or levy tolls, theappointee shall accept appointment as theState's agent, with the provisions of the agencyagreement reflecting (to the greatest extentpossible) the provisions of the ESEP ProjectDocuments to which the State is party. Inreturn for acting as agent, the appointee will


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receive fees equal to the tolling revenue inrespect of the Exhibition Street Extensionactually received by the State (less costs andexpenses incurred or payable by the State whichwould not have been incurred or payable by theState had the arrangements reflected in theESEP Project Documents to which the State isparty continued to apply and the risk referred toin sub-paragraph (b)(ii) not crystallised);

(ii) acquire the ESEP Project for the EarlyTermination Amount applicable at the time ofthe election, this Deed shall terminate (andhence, clause 3.3the Handover Clauses shallapply) and subject to clause 1.15(c) the Stateshall pay the Early Termination Amount inaccordance with clause 1.15 within 60 BusinessDays after the State having elected to acquirethe ESEP Project; or

(iii) levy tolls or allocate a Tax (or component of aTax) to the ESEP Project, Clepco shall providethe State or its nominee with such access rightsin relation to the ESEP Land and the TollingSystem as it may be necessary or desirable forthe State or its nominee to have in order toenable or facilitate the levying or imposition oftolls. The State shall endeavour in good faith tocollect tolls or derive revenue from the relevantTax (or the relevant component of it) sufficientto restore the ability of Original EquityInvestors to achieve the Equity Return and the Extension Equity Investor to achieve the Extension Equity Return they would haveachieved but for the crystallisation of the riskreferred to in sub-paragraph (b)(ii). The Stateshall pay to Clepco the tolling revenue or anamount equal to the proceeds of the relevantTax (or component) actually received by theState, less costs and expenses referred to insub-paragraph (f)(i).

(g) Each party shall endeavour in good faith to:

(i) agree with the other parties on changes to theESEP Project Documents; and

(ii) agree and then give effect to such steps andactions to be undertaken by the party,


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which are either necessary or desirable to enable orfacilitate the State to do the thing it has elected to door which are a necessary consequence of the Statedoing it, without Clepco being obliged to bear orassume any obligation or risk additional to that whichwould have been incurred and assumed had the riskreferred to in sub-paragraph (b)(ii) not crystallised or(should the State elect to acquire the ESEP Project)necessary to give effect to the State's acquisition of theESEP Project.

(h) If:

(i) consequent upon crystallisation of a risk borneby the State under sub-paragraph (b)(ii) inrelation to a Law of Victoria, a measure underparagraph (e) is selected by the State; and

(ii) as a result of selection of that measure theproportion which the aggregate of Tax payableby Clepco bears to the aggregate of amountsreceived by Clepco in respect of the ESEPProject increases relative to what the proportionwould have been if the measure had not beenselected (for example, because of theimposition of Tax on any infrastructurecertificate cancellation amount under section159GZZZZH of the Income Tax AssessmentAct 1936),

then the State will pay to Clepco such amount as isnecessary to restore the ability of Original EquityInvestors to achieve the Equity Return and the Extension Equity Investors to achieve the ExtensionEquity Return they would have achieved but for theincrease.

12.9 Change in Commonwealth Law

Without prejudice to the rights of Clepco under clauses 2.9and 2.10, if an event described in Item 5 of column 1 of theAppendix occurs which has had or will have a MaterialAdverse Effect then, if requested by Clepco to do so, theState shall make representations to the Commonwealthwhich are appropriate and made with a view to overcomingthe Material Adverse Effect.

12.10 Prevention Claim


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Without affecting, or delaying the performance of, theobligations of the State under clause 12.8(d), if a claim ismade by a person which, if successful, would result incrystallisation of a risk accepted by the State under clause12.8(b)(ii), Clepco and the State shall endeavour, in goodfaith, to agree on steps which might be taken by Clepco andthe State to defeat or assist in challenging the claim.

12.11 Non-Exercise of Rights

The State is not required to take any action under clauses9.11 or Article 15 and any failure to do so shall not affectthe obligations required to be performed by Clepco underthis Deed.

12.12 No Risk to State

Without limiting clause 2.9(a), the implementation of, or afailure to implement or a delay in implementing, any of theMajor Transport Network Changes or the loss, reduction ortermination of, any prohibition with respect to, or anyincrease in costs of, deriving Permitted Non-Road Revenuefor any reason whatsoever (including existing, or change in,Law) does not:

(a) render the State liable; or

(b) change or increase the extent of any State liability,

under the ESEP Project Documents.

12.13 West Gate Tunnel Release

The parties agree that, on and from WGT Financial Close:

(a) the State releases and agrees not to bring any claim against Clepco that all or part of the WGT or the carrying out of the WGT Works constitutes a Compensable Enhancement;

(b) Clepco releases and agrees not to bring any claim against the State that all or part of the WGT or the carrying out of the WGT Works in accordance with the WGT Project Agreement constitutes an Appendix Event (other than where the West Gate Tunnel is deemed to be a Freeway in accordance with clause 2.4(a)(iv)), until such time that the WGT Project Agreement is terminated, provided that the releases given under this clause 12.13(b) will continue to be effective to the extent that the WGT has been or continues to be carried out substantially in accordance


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with the terms of the WGT Project Documents as at the date of termination; and

(c) without limiting any rights under the WGT Project Agreement, Clepco releases and agrees not to make a claim against the State in relation to any amount that WGT Co is entitled to claim under sections 3.9 and 3.10 of Part A of the Change Compensation Principles (as that term is defined under the WGT Project Agreement).

12.14 No cross default for West Gate Tunnel

(a) On and from WGT Financial Close:

(i) the parties agree that a breach by WGT Co of a WGT Project Document will not of itself constitute a breach of this Deed; and

(ii) the State will not have any Claim against Clepco under this Deed in relation to or arising from such breach.

(b) On and from WGT Financial Close, the parties agree that the consequences of:

(i) WGT Co breaching a WGT Project Document;

(ii) Clepco breaching an obligation or a warranty in a ESEP Project Document to the extent caused by a breach by WGT Co or its Associates (as defined in the WGT Project Agreement) of a WGT Project Document;

(iii) Clepco breaching an obligation or warranty in a ESEP Project Document to the extent caused by an act or omission of WGT Co or its Associates (as defined in the WGT Project Agreement) in accordance with the WGT Project Documents (including the performance of the WGT Works);

(iv) [Not used];

(v) [Not used]; or

(vi) any third party liability or property damage in connection with the performance of the WGT Works,

are set out in the WGT Project Documents and not this Deed, and the WGT Project Documents set out the


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sole and exclusive contractual remedy for any such breach, untrue, incorrect or misleading representation or warranty, non-compliance or liability and neither the State nor Clepco will have any liability for that breach, untrue, incorrect or misleading representation, warranty, non-compliance liability and such a breach, untrue, incorrect or misleading representation or warranty, non-compliance or liability will not be considered to be a breach of this Deed, an Event of Default or a Project Default or an event or circumstance that would otherwise entitle the State to terminate, rescind or repudiate this Deed, and the State will not in such circumstances terminate, rescind or repudiate this Deed.

(c) [Not used].

(d) Clepco agrees that it will have no claim against the State under this Deed arising as a result of an act or omission of WGT Co on and from WGT Financial Close, other than to the extent the act or omission occurs after the WGT Project Agreement has been terminated or the act or omission was caused by a breach of the State or its Associates (as defined in the WGT Project Agreement) of the WGT Project Documents or a direction by the State or its Associates (as defined in the WGT Project Agreement) under the WGT Project Documents.

(e) On and from WGT Financial Close, the parties agree that the consequences of Clepco breaching the CEPA or otherwise failing to make a CityLink Funding Payment are set out in the WGT Project Agreement and the WGT Equity Subscription Deed and not this Deed, and the WGT Project Agreement and the WGT Equity Subscription Deed set out the sole and exclusive contractual remedy for any such breach or failure and that Clepco will not have any liability for that breach or failure under this Deed and that such a breach or failure will not be considered to be a breach of this Deed, an Event of Default or Project Default or an event or circumstance that would otherwise entitle the State to terminate, rescind or repudiate this Deed, and the State will not in such circumstances terminate, rescind or repudiate this Deed.

13. LOSS OR DAMAGE AND INSURANCE

13.1 Risk


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(a) Subject to clauses 2.9 and 2.10, from the date ofDelivery Clepco shall bear the risk of loss and damageto the Exhibition Street Extension. From the date thatClepco notifies the State that it requires access underclause 8.5, Clepco shall bear the risk of loss anddamage to the ESEP ETTM Works.

(b) Paragraph (a) does not apply to the extent that anyloss, damage or defect provided that the State shall not be liable for any such loss, cost, expense or damage to the extent that the amount of it exceeds the loss, cost, expense or damage (the "theoretical loss") which would have been suffered by Clepco had the Relevant Circumstances (as defined in the IFA Ninth Amending Deed) not occurred. Such theoretical loss shall be calculated using (other than insofar as it relates to CTW Project Debt) the Lending Documents in the form agreed by the Company and the State under clause 4.2(f) of the IFA Ninth Amending Deed and (insofar as it relates to CTW Project Debt) the Lending Documents in the form accepted by the State under clause 4.2(g) of the IFA Twenty second Amending Deed and the Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed) to the ExhibitionStreet Extension is a consequence of breach by theState of its obligations under clause 8.3(a) or which:



or of any negligent, wilful or reckless act or omissionof the State, of any of its nominees or contractorsengaged in the context of an exercise by the State ofits rights under clause 9.11 (or under clause 4.7 of theMaster Security Deed) or of any VictorianGovernment Agency and the State hereby indemnifiesClepco with respect to any loss, cost, expense ordamage suffered as a result of such loss, damage ordefect provided that the State shall not be liable for any such loss, cost, expense or damage to the extent that the amount of it exceeds the loss, cost, expense or damage (the "theoretical loss") which would have been suffered by Clepco had the Relevant Circumstances


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(as defined in the IFA Ninth Amending Deed) not occurred. Such theoretical loss shall be calculated using (other than insofar as it relates to CTW Project Debt or WGT Project Debt) the Lending Documents in the form agreed by the Company and the State under clause 4.2(f) of the IFA Ninth Amending Deed,(insofar as it relates to CTW Project Debt) the Lending Documents in the form accepted by the State under clause 4.2(g) of the IFA Twenty-second Amending Deed, (insofar as it relates to the WGT Project Debt) the Lending Documents in the form notified by the Company to the State in accordance with clause 17.7 of the City Link Concession Deed on or around the date of the Thirty-seventh Amending Deed and the Project Documents in the form of those documents immediately prior to the occurrence of the Relevant Circumstances (as defined in the IFA Ninth Amending Deed). This paragraph (b), however, doesnot apply insofar as its application would beinconsistent with the acceptance of risk provided forunder, or any representation, warranty, undertaking,waiver or acknowledgement provided for in paragraph4.5(b) or any of clauses 5.2, 7.1, 7.2, 12.2 or12.7.cxlvxxiix

(c) For the purposes of this Article 13 the expression "theExhibition Street Extension" includes Plant and theTolling System, and landscaping, improvements andequipment on land the subject of the Lease, but doesnot include:

(i) ESEP Ancillary Works and Operations; and

(ii) land, improvements or equipment on land thesubject of the Lease insofar as it comprises orthey comprise structures for over-land drainageor underground drainage (other than side entrypits and pipework leading from such pitslocated on elevated structures up to the point ofentry to an underground drainage system).

13.2 Liability and Indemnity

(a) Clepco releases the State from and indemnifies itagainst any claim, demand, damage, expense, loss orliability brought against or suffered, incurred orpayable by the State in respect of:

(i) loss, destruction or damage to real or personalproperty; or


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(ii) injury to, or disease or death of, persons,

arising out of the operation, maintenance or repair ofthe Exhibition Street Extension or any activitiesrelated thereto, except to the extent that such loss,destruction, damage, injury, disease or death is aconsequence of breach by the State of its obligationsunder clause 8.3(a) or which:



or of a negligent wilful or reckless act or omission ofthe State, of any of its nominees or contractorsengaged in the context of an exercise by the State ofits rights under clause 9.11 (or under clause 4.7 of theMaster Security Deed) or of a Victorian GovernmentAgency. This exception shall not, however, applyinsofar as its application would be inconsistent withthe acceptance of risk provided for under, or anyrepresentation, warranty, undertaking, waiver oracknowledgement provided for in paragraph 4.5(b) orany of clauses 5.2, 7.1, 7.2, 12.2 or 12.7.

(b) Subject to this Deed and the Project Legislation, fromthe date on which Clepco takes possession of ESEPLand, Clepco has the same responsibilities in respectof persons, property and all other aspects of the ESEPProject which it would have if it held the ESEP Landas freehold in possession and as occupier.

13.3 Policies

Subject to clause 13.4, before the earlier of Delivery and thedate on which the access right granted under clause 8.5 isfirst exercised, Clepco shall effect and thereafter maintain(or shall procure that the Company effects and thereaftermaintains) the following insurances (other than the insurancereferred to in paragraph (b) relating to the operation, repairor maintenance of the Exhibition Street Extension whichmust be effected and maintained on and from Delivery):

(a) an industrial special risk insurance policy in respect ofthe Exhibition Street Extension and the ESEP ETTMWorks or (insofar as the insurance applies prior toDelivery) the ESEP ETTM Works (the "insuredproperty"), with cover no less extensive than found in


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Industrial Special Risks Industry Advisory WordingMark IV or Mark V (or other equivalent industrystandard in force from time to time) andprovidingprovided that the minimum level of such coverage will be based on a maximum foreseeable loss analysis determined by an independent third party appointed by Clepco who is approved by the State (such approval not to be unreasonably withheld) and providing cover for:

(i) insurance for physical loss of or damage to theitems comprising the insured property for their full value on the basis of reinstatement at thetime of reinstatement; and

(ii) consequential loss (business interruption)insurance for an indemnity period of not less than 24 months in respect of loss of anticipatedrevenue and additional expense arising out ofthe risks of:

(A) physical loss of or damage to the insuredproperty covered under clause 13.3(a)(i); and including

(B) prevention of access or egress arising outof loss or damage to freeways and majorroads (including associated facilities such as bridges, interchanges and the like) leading to or from (or which will on Delivery lead to or from) the ExhibitionStreet Extension for an indemnity period of not less than 48 months, subject to a first loss sum insured representing not less than $25 millionbut only to the extent such risk of loss or damage is a risk covered under the industrial special risk policy required under clause 13.3(a);

(b) public liability insurance covering all third partyclaims arising from one occurrence in respect of:

(i) loss, destruction or damage to real or personalproperty; and

(ii) death, injury to, or disease of, persons,

arising out of or in connection with the operation,repair or maintenance of the Exhibition StreetExtension, the execution of the ESEP ETTM Works


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or any activities related thereto for at least $150million for any one occurrence;

(c) employer's liability and workers' compensationinsurance and shall ensure that each of its contractorsand consultants effects and maintains such insurancein respect of any period during which they provideservices in relation to the Exhibition Street Extensionor the execution of the ESEP ETTM Works;

(d) motor vehicle insurance covering third party propertydamage for all vehicles used in the operation, repair ormaintenance of the Exhibition Street Extension or theexecution of the ESEP ETTM Works for at least $5million for any one occurrence; and

(e) directors and officers liability insurance for an amountof not less than $50 million for any one claim and, inthe aggregate, not less than $50 million in any oneyear of insurance.

13.3A Material Subcontract Insurance

(a) Without limiting clause 13.3A(b), Clepco must ensure that each subcontractor which undertakes any part of the operation, maintenance and repair of the Exhibition Street Extension effects and maintains insurances which a prudent service provider would maintain when providing services of a similar nature to the operation, maintenance and repair of the Exhibition Street Extension undertaken by them.

(b) Clepco must:

(i) ensure that each subcontractor who enters into a Material Subcontract effects and maintains:

(A) public and products liability insurance in respect of third party bodily injury, any property damage with a limit of not less than $10 million (escalated by reference to CPI) any one claim but in the aggregate with respect to products liability;

(B) workers’ compensation insurance in respect of its liability for injury to its employees as required by Law; and

(C) motor vehicle third party property damage insurance with a limit of not less


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than $20,000,000 (escalated by reference to CPI),

(Material Subcontract Insurances);

(ii) use its reasonable endeavours to procure that each Material Subcontract Insurance:

(A) includes Clepco and the State as an insured for their respective rights, interests and liabilities, except in the case of workers’ compensation insurance referred to in clause 13.3A(b)(i)(B);

(B) where the policy includes more than one party as an insured, includes cross liability and waiver of subrogation clauses; and

(C) is effected and maintained on terms consistent with the obligations contained in clause 13.5; and

(iii) ensure that each Material Subcontract Insurance:

(A) is effected with a Reputable Insurer; and

(B) is maintained for the period during which the subcontractor is undertaking the operation, maintenance and repair of the Exhibition Street Extension.

(c) Clepco must:

(i) other than in respect of workers’ compensation insurance referred to in clause 13.3A(b)(i)(B), notify the State of any claim under any of the Material Subcontract Insurances, where such claim in any way relates to or arises from the operation, maintenance and repair of the Exhibition Street Extension; and

(ii) notify the State if it becomes aware of any circumstance relating to or arising from the performance of the operation, maintenance and repair of the Exhibition Street Extension which could give rise to an insurer of a Material Subcontract Insurance cancelling or materially changing the Material Subcontract Insurance.

(d) Clepco acknowledges and agrees that the procurement and maintenance of the Material Subcontract


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Insurances in accordance with clause 13.3A(b) does not reduce or otherwise limit the Company and the Trustee's other obligations under clause 13.3.

13.3B State may effect Insurances

(a) The State may procure or effect and maintain the relevant insurances required by clause 13.3 and clause 13.3A (Insurances) and pay the relevant premiums in connection with such Insurances:

(i) if Clepco fails to provide evidence satisfactory to the State that Clepco or the Material Subcontractor (as applicable) is complying with clause 13.3 or 13.3A within 10 Business Days of a request; or

(ii) in the event of any default by Clepco or its subcontractors in obtaining or maintaining such Insurances, in accordance with clause 13.3 or clause 13.3A or if any Insurance for which Clepco are responsible to effect and maintain in accordance with this Deed is terminated.

(b) The costs reasonably incurred by the State in connection with taking such action will be a debt due and payable by Clepco to the State.

13.3C Insurance review

(a) Either the State or Clepco may, within 20 Business Days prior to 6 months prior to every 5th anniversary of the date of the Date of Parliamentary Support (CityLink), request that the parties meet to review the minimum limits of liability, sub-limits of liability and deductibles for the Insurances, including consideration of the appropriateness of the limits, sub-limits and deductibles which will apply during that ensuing 5 year period and which will comprise the minimum requirements for the Insurances during the ensuing 5 year period.

(b) Without limiting the State's rights under clause 7.6, Clepco may propose a Variation Proposal in accordance with clause 7.6(l) requesting a change to the minimum limits of liability, sub-limits of liability and deductibles for the Insurances.

(c) Subject to clause 13.3C(d), clause 7.6(m) will apply to the Variation Proposal submitted by Clepco under clause 13.3C(b).


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(d) In considering the Variation Proposal submitted by Clepco under this clause 13.3C, the State must have regard to:

(i) the nature of the ESEP Project;

(ii) the insurances which Clepco has effected, or caused to be effected, at that time and the risks covered under those insurances;

(iii) the risks required to be insured by clause 13;

(iv) the risks which a prudent insured in the position of Clepco would seek to insure in accordance with best industry practices; and

(v) the terms on which insurance is available and the reasonableness of those terms, having regard to the terms generally available in the insurance market at that time.

13.4 Extent of Cover

(a) Clepco shall ensure that the insurances required to beeffected under clauses 13.3(a) and (b) extend so as toprovide for loss, destruction, damage, injury, diseaseor death which results from or is attributable to theexecution of the ESEP ETTM Works.

(b) The nature and extent of the insurances in relation tothe ESEP Project shall at all times be such as the Statereasonably requires. If the State at any timereasonably requires Clepco to:

(i) insure against a risk not specifically providedfor or contemplated under clause 13.3; or

(ii) increase the extent of or change the terms of thecover in relation to a risk,

it may notify Clepco requesting it to give effect to itsrequirements as set out in the notice.

(c) Clepco need not effect or maintain any particularinsurance required to be effected and maintainedunder clause 13.3 or 13.4(b) insofar as, and only forso long as, it becomes (after the date of this Deed)unavailable (or not available on commerciallyreasonable terms). Clepco must give the Statereasonable notice should it propose not to obtaininsurance in reliance on its rights under this paragraph(c). Within a reasonable time after receipt of that


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notice, the State may request Clepco to effect andmaintain substitute insurance if the State reasonablyconsiders that the substitute insurance is available oncommercially reasonable terms and applies to riskssubstantially similar to those that would have beenaddressed by the insurance not effected or maintained.Subject to paragraphs (d) and (e) Clepco must giveeffect to such a request promptly.

(d) Clepco shall promptly carry out each request made bythe State in accordance with the terms of the notice,unless it disputes the reasonableness of the State'srequest, in which case it may refer the dispute forexpert determination under Article 16.

(e) The State, in making a request under this clause andthe expert, in making a determination under Article16, shall in the case of paragraphs (b) and (c) take intoaccount whether the insurance so requested isavailable in the commercial insurance market oncommercially reasonable terms and in the case ofparagraph (c) applies to risks substantially similar tothose addressed by the insurance not effected ormaintained under paragraph (c).

(f) The parties may, from time to time in the sole andabsolute discretion of each party, agree otherinsurance arrangements to those set out in clauses13.3, 13.4 (excluding this paragraph 13.4(f)) and 13.5and to the extent agreed between them thearrangements shall operate in satisfaction for thoseprovisions.

13.5 General Requirements

(a) All insurances which Clepco is required to effectunder this Deed:

(i) shall be effected with insurers approved by theState (such approval not to be unreasonablywithheld);

(ii) shall be on terms approved by the State (suchapproval not to be unreasonably withheld);

(iii) shall not contain any exclusion, endorsement oralteration, unless it is first approved by the State(such approval not to be unreasonablywithheld);


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(iv) in the case of the insurances specified in clauses13.3(a) and 13.3(b) shall be in the joint namesof the Security Trustee (while any Project Debt, CTW Project Debt or WGT Project Debtremains outstanding), Clepco and its contractors, the State and VictorianGovernment Agencies (to the extent possible)and identify their respective rights and interests;

(v) shall contain a term which requires the insurerto give not less than 90 days prior notice to theState and the Security Trustee in writing (at theaddress for notices to the State under clause19.1) whenever the insurer gives Clepco anotice of cancellation or any other notice inrespect of the policy;

(vi) shall specify the Security Trustee and the Stateas joint loss payees in respect of policiesreferred to in sub paragraph (ivclause 13.3(c),so long as any Project Debt, CTW Project Debt or WGT Project Debt is outstanding andthereafter Clepco and the State as joint losspayees. The State must not be identified as a loss payee in circumstances where there is a declared terrorist event pursuant to the Terrorism Insurance Act 2003 (Cth);

(vii) where the insurances are in joint names, shallcontain a cross liability clause:

(A) in which the insurer agrees to waive allrights of subrogation or action that it mayhave or acquire against all or any of thepersons comprising the insured; and

(B) for the purposes of which the insureraccepts the term "insured" as applying toeach of the persons comprising theinsured as if a separate policy ofinsurance had been issued to each ofthem (subject always to the overall suminsured not being increased as a result);

(viii) other than in respect of clause 13.3(c), shallcontain a "no cancellation" clause:

(A) in respect of the policiesdescribed in clause 13.3(a) and (b); and


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(B) in respect of all other policies to theextent that such a clause can be obtainedby the use of best endeavours;

(ix) where the insurances are in joint names, shallcontain a provision under which the insureragrees that the failure of one insured to observeand fulfil the terms of the policy will notprejudice the policy with respect to the interestsof the other insureds; and

(x) where the insurances are in joint names, shall beendorsed to the effect that the State and theother insureds shall not be prejudiced by anunintended and/or inadvertent error, omissionor misdescription of the risk interest in propertyinsured under the policies, incorrect declarationof values, failure to advise insurers of anychange of risk interest or property insured orfailure to comply with a statutory requirement.

(b) Clepco shall:

(i) give the State proof satisfactory to it ofcurrency and coverage of insurances referred toin:

(A) clause 13.3, before the time thoseinsurances are to be effected under thatclause; and also whenever reasonablyrequested by the State; and

(B) clause 13.3A, before the Date of West Gate Tunnel Completion; and

(ii) give the State certified copies of all:

(A) policies;

(B) renewal certificates; and

(C) endorsement slips.

(c) Clepco shall punctually pay, or procure payment of,all premiums in respect of all insurance policiesreferred to in this Article 13 and give the State copiesof receipts for payment of premiums if and whenrequested by the State.

13.6 Reinstatement

If any part of the Exhibition Street Extension is damaged ordestroyed, while Clepco bears risk in relation to that part


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under paragraph 13.1(a), then Clepco shall, (without limitingits obligations under this Article or Article 10) diligentlypursue its repair and reinstatement. In particular it shall:

(a) take immediate steps to clear any debris and begininitial repair work;

(b) diligently pursue the repair and reinstatement of therelevant part of the Exhibition Street Extension sothat:

(i) it complies with the ESEP O & MRequirements; and

(ii) there is as little as practicable disruption to theExhibition Street Extension;

(c) endeavour, to the greatest extent reasonably possibleto continue to comply with its other obligations underthe ESEP Project Documents;

(d) keep the State fully informed of progress of the repairand reinstatement;

(e) manage all repair and replacement activities so thatthe impact on the free flow of traffic over theExhibition Street Extension is as little as practicable;and

(f) subject to clause 7.2 of the Master Security Deed,apply all proceeds of insurance taken out incompliance with clause 13.3(a)(i) and paid as a resultof the damage or destruction in or towards satisfactionof the costs of the repair and reinstatement.

This clause 13.6 also applies if any part of the ESEP ETTMWorks is damaged or destroyed after access to land onwhich those works were executed was granted under clause8.5. In so applying, references in this clause to theExhibition Street Extension shall be construed so as toinclude references to the relevant ESEP ETTM Works.


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13.7 Termination for Failure to Reinstate

(a) The State shall not be entitled to exercise its right oftermination under clause 15.1 because of a failurediligently to pursue repair and reinstatement underclause 13.6 if the relevant damage or destruction wascaused by a Force Majeure Event and were Clepco torepair and reinstate the damaged or destroyed part ofthe Exhibition Street Extension, the cost to it (net ofany insurance proceeds paid in respect of the relevantdamage or event of destruction) would be likely toresult in the Equity Return assessed only from the date of damage or destruction over the remainder of the Concession Period (as it may have been extended under clauses 2.9 and 2.10 and having regard to any redress afforded or likely to be afforded under clauses 2.9 and 2.10 in connection with the damage or destruction) being less than the lower of the Base Case Equity Return and the Equity Return prior to the damage or destruction.:

(i) the Equity Return assessed only from the date of damage or destruction over the remainder of the CityLink Original Concession Period (as it may have been extended under clauses 2.9 and 2.10 and having regard to any redress afforded or likely to be afforded under clauses 2.9 and 2.10 in connection with the damage or destruction), but for the avoidance of doubt excluding the CityLink Additional Concession Period, being less than the lower of the Base Case Equity Return and the Equity Return prior to the damage or destruction; or

(ii) the Extension Equity Return assessed, subject to clause 1.19A of the City Link Concession Deed, only from the date of damage or destruction over the remainder of the CityLink Concession Period (as it may have been extended under clauses 2.9 and 2.10 and having regard to any redress afforded or likely to be afforded under clauses 2.9 and 2.10 in connection with the damage or destruction) being less than lower of the Extension Base Case Equity Return and the Extension Equity Return prior to the damage or destruction.


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(b) If the State is unable to exercise its right oftermination under clause 15.1, because of paragraph(a), the State may, upon giving 15 Business Daysnotice to Clepco, terminate the rights granted to itunder clause 2.8 (and any other rights and with theexception of those imposed by this clause 13.8,obligations of Clepco under the ESEP ProjectDocuments) insofar as they apply to or affect the partof the Exhibition Street Extension comprising the areabetween two interchanges (whether adjoining or not)between which are the part or parts damaged ordestroyed (the "State Area").

(c) Clepco shall give to the State and its servants oragents such access to the ESEP Land as the State orits servants or agents may reasonably require to repairthe damage to or reinstate the State Area and tooperate, maintain and impose tolls in relation to thatpart of the Exhibition Street Extension as comprisesthe State Area. If the State does terminate rightsunder clause 2.8 in relation to the State Area, noredress under clauses 2.9 and 2.10 need be afforded inrespect of or in connection with the relevant damageor destruction.cxlviiicxl

(d) Clepco shall ensure that users of the State Area will beentitled to unfettered use of the interchanges whichdefine the State Area.

(e) If the State wishes to impose tolls in relation to thatpart of the Exhibition Street Extension as comprisesthe State Area, it and Clepco shall consult from timeto time in an endeavour, in good faith, to agree onmatters of mutual concern to them as operators ofconnecting toll roads.cxlix

(f) If the State is prevented from exercising its right oftermination under clause 15.1 because of theapplication of paragraph 13.7(a) then Clepco shallmake such payments to the State as and when it isnecessary to make those payments in order to ensurethat the Equity Return (assessed only from the date ofthe relevant damage or destruction over the remainderof the CityLink Original Concession Period, as it mayhave been extended under clauses 2.9 and 2.10) neverexceeds the Base Case Equity Return and the Extension Equity Return (assessed, subject to clause 1.19A of the City Link Concession Deed, only from


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the date of the relevant damage or destruction over the remainder of the CityLink Concession Period, as it may have been extended under clauses 2.9 and 2.10) never exceeds the Extension Base Case Equity Return.Clepco shall, however, cease to be liable to makethese payments to the State once the State has beenreimbursed by way of those payments for any costsreasonably incurred by it, in reinstating and repairingthe relevant State Area.

(g) Nothing done by the State under this clause shallconstitute an Appendix Event.

14. REPRESENTATIONS, WARRANTIES ANDUNDERTAKINGS

14.1 State Representations and Warranties

The State represents and warrants that:

(a) it has the power to execute and deliver and perform itsobligations under the ESEP Project Documents and allnecessary action has been taken to authorise theirexecution and delivery and performance save that,insofar as this warranty applies in relation to anobligation to grant a right under clause 2.8, if Clepcois prevented by Law from exercising such a right then,in such circumstances, the State warrants that it hasthe power to perform its obligations under clauses 2.9and 2.10 (in relation to items 4 and 5 of the Appendix)and clause 12.8, rather than power to perform itsobligations under clause 2.8;

(b) it enters into the ESEP Project Documents to which itis a party as a commercial rather than a public orgovernmental act;

(c) it is not entitled to claim immunity from legalproceedings for itself on the grounds of sovereignty orotherwise under a law or in a jurisdiction where anaction may be brought for the enforcement of any ofthe obligations under this Deed;

(d) the supply of information, material or data supplied bythe State or a Victorian Government Agency toClepco did not infringe the Intellectual PropertyRights of a person (other than a party to this Deed, aContractor, a party to the City Link Concession Deedor a person being a Contractor for the purposes of theCity Link Concession Deed), noting however, that thisrepresentation and warranty only applies to the supply


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of information, material and data, not (for example) itsuse, accuracy or validity;

(e) the ESEP Project Documents accurately set out therequirements of the State for the ESEP Project; and

(f) at Delivery, the ESEP Land is unalienated land of theCrown, freed and discharged from all limitations,reservations, restrictions, encumbrances, estates andinterests.

The State irrevocably waives to the fullest extent permittedby the law of any jurisdiction any right to immunity fromset-off, legal proceedings, attachment prior to judgment orother attachment or execution of judgment on the grounds ofsovereignty or on grounds otherwise afforded to the Statebecause it is the Crown in right of the State of Victoria, foritself and its property and assets in respect of its obligationsunder the ESEP Project Documents to which it is a party.The State shall indemnify Clepco against any claim madeagainst, or damage suffered by, it because the use (for thepurposes of the ESEP Project) of information, data ormaterial supplied by the State or a Victorian GovernmentAgency infringes the Intellectual Property Rights of a person(other than a party to this Deed, a Contractor, a party to theCity Link Concession Deed or a person being a Contractorfor the purposes of the City Link Concession Deed). TheState's liability under this indemnity, however, cannotexceed $500,000 in aggregate for all claims under thisclause. Notwithstanding this indemnity, Clepco accepts therisk of such an infringement.

14.2 Clepco Representations and Warranties

(a) Clepco represents and warrants that:

(i) it has the power to execute and deliver andperform its obligations under the ESEP ProjectDocuments and Transaction Documents and allnecessary corporate and other action has beentaken to authorise that execution, delivery andperformance;

(ii) it is entitled to grant the irrevocablenon-exclusive licence granted under clause 7.5;

(iii) the use and licence for use of the ProprietaryDocumentation by the State or any other personto whom a licence or rights are granted directlyor indirectly by Clepco under clause 7.5 willnot infringe any Intellectual Property Rights of


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any third person or result in the State or otherperson to whom a licence or rights are grantedbeing liable to a third person (except pursuantto an agreement made in accordance with clause7.5(c)) for royalties or compensation; and

(iv) the Operator is Controlled by Transfield Holdings Pty Ltd ACN 001 241 265 and Transroute International S.A., as agreed between those parties.[Not used].

(b) The representations and warranties made undersub-paragraphs (a)(ii) and (iii) are deemed to berepeated by reference to the circumstances thensubsisting at the date any licence or rights are grantedunder clause 7.5 and, in relation to sub-paragraph(a)(iii), on any date on which the State grants anylicence or sub-licence which it is empowered to grantunder that clause (providing that the State has given 5Business Days notice of that date to Clepco).

14.2A Clepco subcontractor representations and warranties

(a) Clepco represents and warrants for itself that:

(i) each Subcontractor engaged under an Enterprise-wide Subcontract has sufficient financial capacity, experience and capability to provide the goods or perform the services that it provides or performs under the Enterprise-wide Subcontract, to at least the standards required under this Deed; and

(ii) there has been no material change in the financial condition of the Key Subcontractor (since the date of their last audited accounts) which would prejudice the ability of Clepco to perform its obligations under the ESEP Project Documents.

(b) Each representation and warranty given by Clepco in accordance with clause 14.2A(a):

(i) is made on the Date of Parliamentary Support (CityLink); and

(ii) will be deemed to be repeated each day during the period from the Date of Parliamentary Support (CityLink) to the expiry of the Concession Period,


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with reference to the facts and circumstances then subsisting.

14.3 Clepco Undertakings

(a) Clepco shall not:

(i) carry on any business other than the ESEPProject or as permitted by clause 9.4;

(ii) acquire or hold any property or incur anyliabilities other than for the purposes of theESEP Project, or as permitted by clause 9.4;

(iii) incorporate or acquire any subsidiary; or

(iv) materially amend, materially vary or terminate,any ESEP Project Document or TransactionDocument,

without the State's prior approval which, in relation tosub-paragraph (iv) (insofar as it applies to TransactionDocuments), shall not be unreasonably withheld ordelayed.

(b) Clepco shall obtain or procure the prior approval ofthe State (which shall not be unreasonably withheld ordelayed) to:

(i) material changes in the identity or terms ofengagement of the Operator or to theacquisition of Control of the Operator by anEntity (other than an Entity consisting of acorporation referred to in sub-paragraph14.2(a)(iv)); and

(ii) any change in the Financial Model or theTraffic Model (other than in relation to dataincorporated pursuant to paragraph (c)).

(c) Without limitation to Clepco's obligations under theESEP Project Documents, it shall:

(i) insofar as it relates to the execution of the ESEPETTM Works, comply with the VictorianGovernment Code of Practice for the Buildingand Construction Industry;

(ii) give notice to the State of the names of itsproposed directors before, orcontemporaneously with, their appointment;


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(iii) comply with all relevant Laws applicable inrelation to the ESEP Project and the executionof the ESEP ETTM Works;

(iv) ensure that the Financial Model and TrafficModel incorporate relevant and accurate datawhen operated, from time to time for thepurposes of this Deed, provided however, thatdata so incorporated relating to Project Debt or, CTW Project Debt, WGT Project Debt, Equity Return or Extension Equity Return must beconsistent with the nature of, and limitationsinherent in, those concepts, and the variousbases and assumptions required under this Deedto be adopted in relation to them as outlined inparticular in clause 14.4 and14.4, clauses 1.19 and 1.19A of the City Link Concession Deed, inthe definitions of those concepts and in the definition of “Project Securities”, “Original Project Securities” and “Extension Project Securities”;

(v) ensure that:

(A) such person as may from time to time benominated by the State is given suchaccess to the Traffic Model and theFinancial Model as that person considersnecessary in order to enable the person tocheck whether the obligations concerningthose models under this Deed have beenobserved (provided, however, that theState shall only nominate such a person ifit reasonably considers the person to beskilled in the operation or audit (oroperation and audit) of computer modelsand has informed the person of theconfidentiality of the contents of themodels); and

(B) revisions to the Traffic Model and theFinancial Model specified by such aperson by notice to Clepco are promptlyeffected unless Clepco by notice to theState promptly disputes thereasonableness, accuracy or relevance ofany such revision. In that event, the State


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may promptly refer the dispute for expertdetermination under Article 16; and

(vi) ensure that it is able to satisfy its obligationsunder clause 3.3the Handover Clauses on anydate during the Concession Period, as if theConcession Period terminated, or the obligations under the Handover Clauses were required to be fulfilled, on that date.

(d) During the Concession Period Clepco shall maintainsuch a level of technology in its systems of operation(including the Tolling System), maintenance andrepairs of the Exhibition Street Extension as would bemaintained by a prudent operator of the ExhibitionStreet Extension consistently with current goodpractices and standards.

(e) Following termination of this Deed, Clepco shall notcarry on any business or activity (other than minorinternal administrative matters and activities which itmust conduct to comply with any law or request by aGovernment Agency) without the State's prior writtenconsent.clcxlii

14.4 Infrastructure Borrowings

In assessing or determining at any particular time whetherthe State has a particular liability under the ESEP ProjectDocuments or the nature or extent of any such liability, or inassessing or determining matters relating to Project Debt(including the ability of the Company or the Trustee or bothof them to repay Project Debt in the context of clauses 2.9and 2.10) it shall be assumed that:

(a) the aggregate amount of the deposits which secure(whether by way of set-off, combination of accountsor otherwise) that component of the Project Debt as isattributable to infrastructure borrowings (as agreedunder the City Link Concession Deed) is and remainsan amount equal to the amount of that component;

(b) the net cost of that component of the Project Debt(such as interest costs and fees) never exceeds net(after Taxes) revenue from those deposits; and

(c) those deposits are and remain legally and beneficiallyheld by the Company.


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This assumption does not apply in determining the prioritiesunder clause 3.1, or in the context of clause 7.2, of theMaster Security Deed and does not affect clause 1.9 of theMaster Security Deed.

14.5 Change in Ownership

Clepco must ensure that no person, other than the Company:

(a) holds shares in Clepco;

(b) has or acquires a beneficial interest in shares inClepco;

(c) is or becomes entitled (within the meaning applicableto it under section 609 of the Corporations Law in itsform as at 22 April 1998) to shares in Clepco, otherthan as a result of being so entitled to shares in theCompany; orcxliii

(d) has or acquires a right (actual or contingent) theexercise of which would result in a situation to whichany of the preceding paragraphs of this clause 14.5applies,

other than under, or by virtue of the exercise of any right,power or remedy arising under, any mortgage or chargeconsented to by the State under clause 2 of the MasterSecurity Deed.cxliiv

14.6 EIS

(a) If, before the date being the Operative Date for thepurposes of the Fourth Amending Deed, Clepco or theState becomes aware that an EIS is, or will be,required in relation to the ESEP Project, it shall beentitled to terminate this Deed by giving, prior to thatdate, notice of termination to the other party.

(b) If, after that date Clepco becomes aware that an EISis, or will be, required in relation to the ESEP Project,it shall promptly notify the State of it. If, after thatdate, the State becomes aware that an EIS is or will berequired in relation to the ESEP Project and:

(i) Delivery has not occurred, it may terminate thisDeed by notice to Clepco given within 20Business Days after it becomes aware of theEIS requirement or provide the limitedindemnity described in paragraph (c). If the


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State does not give such a notice, it will bedeemed to have elected to provide thatindemnity; or

(ii) Delivery has occurred, it must provide thelimited indemnity described in paragraph (c).

(c) Subject to paragraph (e), if the State is deemed tohave elected to provide the limited indemnitydescribed in this paragraph, or must provide thatindemnity, it shall indemnify Clepco against costs,charges, expenses, liabilities and losses reasonablyincurred by Clepco as a consequence of the EIS or incomplying with requirements resulting from the EIS.

(d) If the State terminates this Deed under paragraph (b),it shall pay to Clepco an amount, in aggregate, equalto the Early Termination Amount applicable at thetime of the election under paragraph (b) in accordancewith clause 1.15. That amount shall be paid within 60Business Days of the relevant election.

(e) The State will not be liable to provide an indemnityunder paragraph (c) insofar as:

(i) Clepco is in breach, or had committed a breach,of an ESEP Project Document; and

(ii) that breach is the subject of, or is includedwithin the scope of, the relevant EIS.

14.7 Ring Fencing

(a) Clepco must not make, or permit to subsist, a contractwith any Transurban Entity other than a contract:

(i) which is not more onerous in a material respect(assessed having regard to all relevantcircumstances, including the nature of therelevant contract) on Clepco than would be thecase were the contract to have been made on anarm's length basis; and

(ii) which a reasonable person in the position ofClepco would enter into (if acting solely in theinterest of one or more of the Company, theTrust (but without regard to the interests of anyEntity which are separate to its interest as aholder of an interest in Units) and Clepco).

(b) Clepco must not:

(i) acquire any assets from a Transurban Entity; or


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(ii) assume or permit to subsist any liability infavour of a Transurban Entity (or in favour ofany third party at the request of or for thebenefit of a Transurban Entity),

other than an asset acquired, or a liability assumedunder a contract -

(iii) which is not more onerous in a material respect(assessed having regard to all relevantcircumstances, including the nature of therelevant contract) on Clepco than would be thecase were the contract to have been made on anarm’s length basis; and

(iv) which a reasonable person in the position ofClepco would enter into (if acting solely in theinterest of one or more of the Company, theTrust (but without regard to the interests of anyEntity which are separate to its interest as aholder of an interest in Units) and Clepco).cliiicxlv

(c) This clause 14.7 does not apply to the CLP WGT Project Documents entered into as at the Date of Parliamentary Support (CityLink) or as subsequently amended with the approval of the State. To the extent the CLP WGT Project Documents are subsequently amended without the need to obtain State consent, clause 14.7 will only apply in relation to those amendments.

15. TERMINATION

15.1 Material Default

(a) At any time after the occurrence of an Event ofDefault or a Project Default the State may give noticeto Clepco of the State's intention to terminate thisDeed under this clause if either:

(i) a remedy of the breach to which the Event ofDefault or Project Default relates; or

(ii) the overcoming of the consequences of thatbreach,

is not thereafter diligently pursued.

(b) Within 15 Business Days of the State giving a noticeunder paragraph (a), Clepco shall give to the State anotice ("Proposed Remedy Program") setting out awritten program describing:


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(i) the date by which it is anticipated that therelevant breach will be remedied or itsconsequences overcome; and

(ii) the program which should be adopted in orderto remedy the relevant breach or overcome itsconsequences by that date.

(c) Promptly after receipt of the Proposed RemedyProgram given in accordance with paragraph (b), theState shall endeavour to agree with Clepco the mattersrequired to be described in that program. If any ofthose matters are not agreed within 20 Business Daysof the State's receipt of the Proposed RemedyProgram, either party may refer the matter for expertdetermination under Article 16.

(d) If, however, a Proposed Remedy Program is not givenin accordance with paragraph (b), the State mayprepare its own program (the "State RemedyProgram") and give the State Remedy Program toClepco. Promptly after receipt of a State RemedyProgram given in accordance with this paragraph,Clepco shall endeavour to agree with the State thematters described in that program. If any of thosematters are not agreed within 20 Business Days ofClepco's receipt of the State Remedy Program, eitherparty may refer the matter for expert determinationunder Article 16.

(e) The parties agree that in agreeing or determiningunder paragraph (c) or (d) a Proposed RemedyProgram or State Remedy Program (as the case maybe) the State and Clepco shall each be entitled torequire that the relevant program reflect the remedy ofthe relevant breach or the overcoming of theconsequences of the relevant breach being diligentlypursued by Clepco.

(f) Clepco shall:

(i) remedy the relevant breach or overcome itsconsequences by the date specified in theagreed or determined Proposed RemedyProgram or the agreed or determined StateRemedy Program (as applicable), but as thatdate may have been varied as a result of:

(A) agreement between the parties; or


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(B) the operation of paragraph (g); and

(ii) diligently pursue all steps and actions describedin the agreed or determined Proposed RemedyProgram or the agreed or determined StateRemedy Program (as applicable), but as thosesteps may have been varied as a result of:

(A) agreement between the parties; or

(B) the operation of paragraph (g).

(g) Clepco may seek a change to the date by which it mustachieve a remedy of the relevant default or theovercoming of its consequences, or any steps oractions described in the Proposed Remedy Program orin the State Remedy Program, and a consequentchange in the relevant program to achieve that remedyor the overcoming of those consequences. It may onlydo this, however, by notice to the State:

(i) specifying the change sought (and theconsequent changes to the relevant program);and

(ii) which is received by the State prior to the dateby which it is, at the time of giving the notice,obliged to have remedied the relevant breach orovercome its consequences.

(h) If Clepco has diligently pursued a remedy of therelevant breach or the overcoming of its consequencessince the 15th Business Day after the date of thenotice given by the State under paragraph (a) and itseeks a change in accordance with paragraph (g), itshall be entitled to such change insofar as it isconsistent with its continuing diligently to pursue aremedy of the relevant breach or the overcoming of itsconsequences. If there is no agreement as to anychange so sought within 10 Business Days of theState's receipt of a notice under paragraph (g), eitherparty may refer the matter for expert determinationunder Article 16.

(i) The State shall be entitled to terminate this Deed atany time after Clepco fails to observe an obligationimposed on it under sub-paragraph (f)(i). Terminationshall be effected by the State giving not less than 25Business Days notice to Clepco. Subject to theMaster Security Deed, such a notice takes effect upon


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expiry of that 25 Business Day period. It is agreedthat the State shall have no other claim or remedyagainst Clepco and Clepco is not liable in damages orotherwise for failure to observe an obligation imposedon it under sub-paragraph (f)(i).

(j) If Clepco fails to observe its obligations undersub-paragraph (f)(ii), the State may give notice inwriting requiring it to remedy that failure within 20Business Days of that notice (by observing thoseobligations). If Clepco does not remedy that failurewithin that 20 Business Day period or subsequentlyfails to observe its obligations under sub-paragraph(f)(ii), the State shall be entitled to terminate this Deedat any time by giving not less than 25 Business Daysnotice to Clepco. Subject to the Master SecurityDeed, such a notice takes effect upon expiry of that 25Business Day period. It is agreed that the State shallhave no other claim or remedy against Clepco andClepco is not liable in damages or otherwise forfailure to observe an obligation imposed on it undersub-paragraph (f)(ii).

15.2 Termination Restrictions

(a) If:

(i) an Appendix Event constitutes, or results in, acircumstance or event which entitles the State toterminate this Deed under clause 15.1;

(ii) that Appendix Event has had or will have aMaterial Adverse Effect; and

(iii) Clepco has given notice of the Appendix Eventin accordance with clause 2.9,

then, notwithstanding clause 15.1,

(iv) if the redress afforded under clauses 2.9 and2.10 in respect of the relevant Appendix Eventhas remedied or overcome the consequences ofthe relevant circumstance or event, the Statemay not exercise the entitlement referred to insub-paragraph (i) because of the circumstanceor event; or

(v) while:

(A) the redress afforded under clauses 2.9and 2.10 remains unagreed and notdetermined;


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(B) the redress likely to be agreed ordetermined is likely to promptly remedyor overcome the consequences of therelevant circumstance or event; and

(C) Clepco is diligently pursuing finalisationof an agreement or determination as tothat redress,

the State may not exercise the entitlementreferred to in sub-paragraph (i) because of thecircumstance or event.

(b) If:

(i) the State would, but for this paragraph, beentitled to terminate this Deed because of anEvent of Default or Project Default; and

(ii) the Event of Default or Project Default arose asa direct and sole result of a breach by the Stateof an ESEP Project Document,

then, in the context of the relevant Event of Default orProject Default, the State shall not be entitled toexercise that entitlement.

15.3 Termination by Clepco

(a) Clepco may terminate this Deed by notice to the Stategiven at a time when, and within a reasonable timeafter, all of the following conditions are satisfied:

(i) an event occurs to which item 1 or item 4 of theAppendix applies, which does or will have aMaterial Adverse Effect or the State breachesan ESEP Project Document;

(ii) the value of the effect of the event (in terms ofloss of revenue or increase in outgoings), or thelevel of damages flowing from the breach (asapplicable), exceeds 20% of the present valueof future revenue from the ESEP Project (usingprojections derived from operation of theFinancial Model and a discount rate of 12·85%per annum);

(iii) the redress for the event is agreed or determinedto be implemented over a period in excess of 2years or the damages are not paid promptlyafter any award of them (the right of appealagainst which has expired);


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(iv) no part of that redress or award of damages hasbeen accepted; and

(v) no Event of Default or Project Default subsists.

(b) If Clepco terminates this Deed under paragraph (a),the State must pay in accordance with clause 1.15 anamount equal to the Early Termination Amountapplicable at the date of the State's receipt of noticeunder paragraph (a). That payment must be madewithin 60 Business Days of the date of that notice.

(c) If Clepco exercises its right to terminate this Deedunder this clause 15.3 in relation to an event to whichitem 1 or item 4 of the Appendix applies, no redressunder clauses 2.9 and 2.10 need be provided inrelation to that event, even if it has been agreed ordetermined that such redress should be provided.

15.4 Payments on Termination

(a) If this Deed is terminated by the State, Clepco shallpay to the State an amount equal to the aggregate of:

(i) if it is terminated prior to Delivery, amountsdue and payable by it to the State in respect ofindemnities; or

(ii) if it is terminated after Delivery, amounts dueand payable by it to the State in respect of:

(A) indemnities;

(B) sub-paragraph 3.1(b)(ii) or 3.1(b)(iii);

(C) sub-paragraph 3.1(b)(i) or Step-inPayments;

(D) clause 2.5;

(E) paragraphs 2.6(d) and (e);

(F) rental under the Lease; or

(G) clause 3.4.

(b) If this Deed is terminated by Clepco under clause15.3, there shall be deducted from the EarlyTermination Amount payable under that clause:

(i) any amount to which the State would be entitledunder paragraph (a), were the termination madeby the State at that time; and


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(ii) any amount due but unpaid to the State underthe ESEP Project Documents.

15.5 Exclusive Termination

Neither Clepco nor the State may terminate this Deed or anyrights under this Deed otherwise than in accordance withclauses 2.7, 8.1, 12.8, 14.6(a), 14.6(b) and this Article 15 orin accordance with the Master Security Deed. It isacknowledged by the parties that the doctrine of frustrationis not intended to apply to this Deed.

15.6 Suspension

(a) Subject to paragraph (b), if Clepco is unable toperform an obligation to the State under the ESEPProject Documents because of a relevant event, thenthe obligation shall be suspended (and Clepco shall berelieved from liability arising by reason of thatinability) for the duration of the relevant period. Inthis context:

(i) "relevant event" means a Force Majeure Event(which manifests itself after the date of thisDeed) or an event or circumstance (whichmanifests itself after the date of this Deed)which would have constituted a Force MajeureEvent but for:

(A) the fact that the risk of the event orcircumstance was reasonably capable ofadequate insurance in the commercialinsurance market on reasonable terms; or

(B) the application of the exceptions in thedefinition of "Force Majeure Event"which relate to, first, Items 1 to 7 ofcolumn 1 of the Appendix (see paragraph(d) of that definition), or, secondly,industrial action (see paragraph (h) ofthat definition but as if that paragraphonly excluded industrial action of thetype specified in item 6 of the Appendix);and

(ii) the "relevant period" is the shorter of the periodthat Clepco remains unable to perform therelevant obligation because of the relevantevent and the period during which it would havebeen unable to so perform that obligation had it


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used reasonable endeavours to mitigate orovercome the consequences of the relevantevent.

(b) Paragraph (a) does not suspend:

(i) any obligation expressed in terms of arequirement diligently to pursue something(noting that in assessing or determining what isrequired in terms of an obligations diligently topursue, regard should be had to clause 1.12); or

(ii) any obligation to pay money or indemnify.

16. DISPUTE RESOLUTION

16.1 Disputes

(a) Subject to paragraph (c), any dispute or differencearising between the parties under any of the clauses ofthis Deed listed in Part A of the Dispute ResolutionSchedule or under any other clause in which it isexpressly provided that a dispute or difference may bereferred for expert determination under this Article16, shall be resolved in the first instance inaccordance with the provisions of clauses 16.2 (asapplicable), and 16.3 to 16.7 inclusive and, subject tothe provisions of clause 16.5 in relation to givingtimely notice, a party may appeal against thedetermination of the expert, in which case theprovisions of clauses 16.13 to 16.16 inclusive shallapply.

(b) Any dispute or difference arising under any of theclauses listed in Part B of the Dispute ResolutionSchedule or under any other clause in which it isstated that a dispute or difference may be referred forresolution under Article 16 (not being a dispute ordifference required to be referred for expertdetermination) shall be resolved in accordance withclauses 16.2 (as applicable) and clauses 16.8 to 16.16inclusive.

(c) It is acknowledged and agreed that this Article 16does not apply to any dispute or difference arisingbetween the parties which is not referred to inparagraph (a) or paragraph (b).

(d) The parties agree that for the purposes of theresolution of any dispute or difference relating to anymatter arising under clauses 2.9 or 2.10, the dispute or


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difference shall be decided or determined inaccordance with considerations of general justice andfairness and the provisions of section 22(1) of theCommercial Arbitration Act 1984 (Vic) are excluded.

16.2 Procedures

(a) Where a provision of this Deed authorises a party torefer a dispute or difference for expert determinationor other resolution under this Article 16 after theparties have failed to agree on a matter, the dispute ordifference shall be referred for resolution under thisArticle 16 by one party giving notice to the other partywithin 14 days after:

(i) the expiry of any period specified for reachingagreement; or

(ii) (if no such period is specified), the expiry of 20Business Days after one party gives notice tothe other party that the matter must be agreed.

(b) Any dispute or difference, other than one referred toin paragraph (a), shall be referred for resolution underthis Article 16 if either party gives a notice to theother party within 14 days after the dispute ordifference arises.

(c) If no notice is given within the time prescribed underthis clause for giving a notice of referral for resolutionof any dispute or difference under this Article 16 (asthe case may be):

(i) both parties will be barred from giving such anotice in the future in relation to the relevantdecision, determination or matter;

(ii) both parties waive the right to object to thedecision, determination or matter the subject ofthe dispute or difference; and

(iii) the relevant decision, determination or matterwill be final and binding.

16.3 Selection of Expert

(a) A dispute or difference required to be referred to orresolved by expert determination shall be determinedby an independent expert:

(i) agreed between and appointed by the parties; or


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(ii) in the absence of agreement, within 7 days afterthe date of the notice under clause 16.2 (a) or(b), as applicable, appointed by the President ofthe Institute of Arbitrators,

and administered in accordance with clause 16.4.

(b) It is the intention of the parties that:

(i) the expert appointed to determine a dispute ordifference arising in relation to the design,construction or operation of the ExhibitionStreet Extension must have a technicalunderstanding of the issues in contest; and

(ii) the expert appointed to determine a dispute ordifference arising under Article 2 must have ageneral understanding of the industry area orother private sector infrastructure projects.

16.4 Rules of Expert Determination

(a) The expert shall:

(i) act as an expert and not as an arbitrator;

(ii) proceed in any manner he or she thinks fitwithout being bound to observe the rules ofnatural justice or the rules of evidence;

(iii) take into consideration all documents,information and other material which the partiesgive the expert and which the expert in his orher absolute discretion, considers relevant to thedetermination of the dispute or difference;

(iv) not be expected or required to obtain or refer toany other documents, information or material,but may do so if he or she so wishes; and

(v) make his or her decision within 14 days fromthe acceptance by the expert of theappointment, or such extended period as theparties shall agree.

(b) The expert may commission his or her own advisersor consultants, including lawyers, accountants,bankers, engineers, surveyors, traffic consultants orother technical consultants, to provide information toassist the expert in his or her decision.


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(c) The parties shall indemnify the expert for thereasonable cost of retaining those advisers orconsultants.

(d) In reaching a determination in respect of a dispute ordifference referred to in clause 16.1(d), the expertmust give effect to the intent of the parties enteringinto the ESEP Project Documents as set out in Article2 by employing the options referred to in clauses 2.9and 2.10. The expert shall not have regard to thematters set out in clause 2.1 or clause 2.2.

16.5 Expert's Finding

The determination of the expert shall be in writing and willbe final and binding on each party unless a party gives noticeof appeal to the other party within 14 days after thedetermination. The parties are to give effect to thedetermination of the expert unless and until it is reversed,overturned or otherwise changed by arbitration under clause16.13.

16.6 Release

The expert will not be liable in respect of the expertdetermination, except in the case of fraud on the part of theexpert. The parties agree to release and indemnify theexpert from and against all claims, except in the case offraud, on the part of the expert, which may be made againsthim or her by any person in respect of the expert'sappointment to determine the dispute or difference.

16.7 Costs

Failing any agreement to the contrary between the parties,the expert shall have the power to award costs against eitheror both of the State and Clepco and against the Agent andthe Security Trustee (if they or any of them participate in theprocess) in such proportions as the expert shall determine.For the purposes of this clause, costs shall not be limited tolegal costs (on a solicitor/own client basis) but will extend toall costs incurred by the parties, (including fixed overheadcosts), directly related to the referral to, and conduct by theparties of, the expert determination.In the absence of an agreement or a determination to thecontrary, the State will pay one half and Clepco will pay onehalf of the cost of the expert.

16.8 Reference of Disputes


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(a) At the expiration of 10 days from the date of thenotice under clause 16.2 in respect of a dispute ordifference (other than one to which paragraph 16.1(a)applies), the party which gave the notice shall (unlessthe dispute is meanwhile resolved) give to the otherparty notice (the "Conciliation Notice") by hand orby certified mail stating that the dispute or differencewill within 7 days from the date of receipt of theConciliation Notice (unless the dispute or difference ismeanwhile resolved) be referred for conciliation to theInstitute of Arbitration Australia ("IAA").

(b) The giving of a Conciliation Notice shall be acondition precedent to the commencement by eitherparty of the conciliation process with regard to thematters the subject of that dispute or difference asidentified in the Conciliation Notice.

16.9 Conciliation

If after the expiration of 7 days from the receipt of aConciliation Notice the dispute or difference has not beenresolved then the party giving the Conciliation Notice mustrefer the dispute or difference to the IAA for resolution inaccordance with IAA Rules for the conduct of CommercialConciliation.

16.10 Place of Conciliation

The place of a conciliation shall be Melbourne.

16.11 Evidence Not Admissible

Evidence of anything said, documents presented to,admissions made or matters raised in the course of anyconciliation under this Article will be confidential to theparties and the conciliator and will not be admissible at anysubsequent arbitration proceedings.

16.12 Costs

Failing any agreement to the contrary between the parties,the conciliator shall have the power to award costs(including any fees charged by the IAA) against either orboth of the State and Clepco and against the Agent and theSecurity Trustee (if they or any of them participate in theprocess) in such proportions as the conciliator shalldetermine. For the purposes of this clause, costs shall not belimited to legal costs (on a solicitor/own client basis), butshall extend to all costs incurred (including fixed overheadcosts) in the course of referring the matter for conciliation or


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conducting the conciliation.In the absence of an agreement or a determination to thecontrary, the State will pay one half and Clepco will pay onehalf of the costs of the conciliation.

16.13 Arbitration

(a) If:

(i) a notice of appeal is given under clause 16.5; or

(ii) a dispute or difference identified in aConciliation Notice is not resolved within 28days after the reference to the IAA,

a party to the dispute or difference may notify theother party (the "Arbitration Notice") that it requiresthe dispute or difference to be referred to arbitration.Such a notice will be deemed to have been given bythe State to Clepco if the State refers for arbitrationthe subject matter of a notice from Clepco underparagraph 8.2(c).

(b) Upon receipt by the other party of the ArbitrationNotice such dispute or difference will then be and ishereby referred to arbitration.

16.14 Identity of Arbitrator

Any arbitration under clause 16.13 must be conducted by 3arbitrators (or such lesser number as agreed by the parties)chosen as follows:

(a) one arbitrator to be nominated by each of the Stateand Clepco; and

(b) the third arbitrator to be agreed between the parties or,failing such agreement, within 10 Business Days afterreceipt by the other party of the Arbitration Notice,then by an arbitrator to be selected by the Presidentfor the time being of the IAA.

16.15 Rules for Conduct of Arbitration

An arbitration under this Article will be conducted inaccordance with the Rules for the Conduct of CommercialArbitration of the IAA.

16.16 Place of Arbitration

The place of any arbitration shall be Melbourne.

17. ACCOUNTING AND REPORTING OBLIGATIONS


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17.1 Accounting Records

(a) Clepco shall keep proper books of account and allother records it has relating to the ESEP Project at theCompany's offices in Melbourne.

(b) Clepco shall have its accounts audited annually exceptinsofar as Clepco qualifies for accounting relief underClass Order [95/1530] made by the AustralianSecurities Commission and the directors of Clepcocomply with the conditions set out in clause 2 of thatClass Order.

(c) Clepco shall ensure that its books of account andrecords referred to in paragraph (a) are available tothe State at all reasonable times for examination,audit, inspection, transcription and copying.

(d) Without limiting its obligations under clause 3.3,the Handover Clauses, if this Deed is terminated Clepcoshall give to the State access to all of its books ofaccount and records referred to in paragraph (a) whichare necessary for the continued operation, repair andmaintenance of the Exhibition Street Extension.

(e) The State shall give Clepco access to any books ofaccount or records given to it by Clepco for a periodof 7 years after the date they are given.

17.2 Financial Statements

Not later than 30 September in each year, Clepco shall giveto the State its audited financial statements for the previousfinancial year.

17.3 Models

(a) Not later than 30 September in each year, Clepco shallgive to the State:

(i) a printoutan electronic or a printed copy of theFinancial Model and of the Traffic Model (or a disk on which those models are encoded)certified by a director of Clepco on the basis ofthe actual performance of Clepco in theprevious financial year and cumulatively sinceFinancial Closing (within the meaning of theCity Link Concession Deed) and showing thethen current performance projections for theremaining years of the Concession Period,assuming no (or no further) extension; and


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(ii) a statement reconciling the information in the printout relating to the Financial Model (or the disk) referred to in paragraph (a) with theaudited financial statements of Clepco (ifapplicable), the Company and the Trust for thesame period.

(b) Without limiting paragraph (a), Clepco shall ensurethat the State is provided with such results from theoperation of the Financial Model and the TrafficModel and in a form reasonably satisfactory to theState as and when reasonably requested by the State,as soon as practicable after any such request.

17.4 Traffic Figures

(a) Clepco shall give the State such information relatingto traffic figures as the State reasonably requires.

(b) Information required under paragraph (a) shall begiven to the State at quarterly intervals and at suchother times as the State reasonably requires.

17.5 Other Information

(a) Clepco shall give to the State:

(i) copies of all notices to shareholders and shallpermit the State to attend all general meetingsof shareholders;

(ii) records of expenditure from the InsuranceProceeds Account within 45 days of suchexpenditure; and

(iii) such other information relating to the ESEPProject as the State may reasonably requirefrom time to time provided that the Stateindemnifies Clepco against costs and expenses(including internal overheads) reasonablyincurred in compliance with such a requirement(other than immaterial costs and expenses).

(b) Clepco shall give to the State records of expenditure from the Maintenance and Repairs Account within 45 days of such expenditure, sufficient to enable a reconciliation between those records and the relevant budget provided under clause 11.1.[Not used].

18. ASSIGNMENT AND MORTGAGE

18.1 Assignment


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(a) Subject to clause 18.2 and to paragraph (b), Clepcoshall not assign, novate, mortgage or charge orotherwise deal with its interest in, or obligationsunder, any of the ESEP Project Documents orTransaction Documents (and shall not permit or sufferany such assignment, novation, mortgage, charge ordealing) without the prior approval of the State.

(b) Paragraph (a) does not restrict anything permittedunder this Deed or the ESEP Deed of Charge.

(c) Clepco shall give the State a certified copy of anyagreement under which it assigns, novates, mortgages,charges or deals with its interests in, or obligationsunder, an ESEP Project Document or TransactionDocument.

(d) Subject to paragraph (e), the State will not assign,novate, mortgage, charge or otherwise deal with itsinterest in, or obligations under, any of the ESEPProject Documents without the prior approval ofClepco.

(e) The State may assign any of its rights under any of theESEP Project Documents to receive revenue,provided that the assignment does not directly orindirectly impose any additional obligations on orreduce any rights of Clepco or have a MaterialAdverse Effect.

18.2 Mortgage

Clepco may, on or after the date being the Operative Datefor the purposes of the Fourth Amending Deed, mortgage orcharge its interest under the ESEP Project Documents andTransaction Documents to secure its obligations as aguarantor of the Company's and Trustee's obligations to anyLender (or trustee or agent for any Lender) under theLending Documents, if, and for so long only as, the Lender(or trustee or agent for the Lender) is party to the MasterSecurity Deed.

19. GENERAL

19.1 Notices and Approvals

(a) Except as otherwise provided in this Deed, a notice,request, approval consent or certificate given underthis Deed (a "communication") shall be in writing andis deemed to be duly given to a party if it is:


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(i) left at the party's address;

(ii) sent by prepaid post to the party's address witha request for confirmation of receipt to beprovided by post; or

(iii) (other than a communication under Article 15),transmitted by facsimile using the party'sfacsimile number, but only if the senderreceives an "error free" transmission report forthe correct facsimile number; and,

in the case of a notice given to Clepco marked:"URGENT FOR THE IMMEDIATE ATTENTIONOF CHIEF EXECUTIVE OFFICER - MELBOURNECITY LINKCITYLINK PROJECT".

(b) A communication given to a party is deemed to havebeen received by the party:

(i) if left at the party's address, when delivered;

(ii) if sent by prepaid post to the party's addresswith a request for confirmation of receipt to beprovided by post, on the day evidenced by thereceipt given by the postal service; and

(iii) (other than a communication under Article 15)if transmitted by facsimile using the party'sfacsimile number, on the day of transmissionbut only if the sender receives an "error free"transmission report for the correct facsimilenumber,

provided however, that:

(iv) if a party would, but for this provision, bedeemed to have received a communication after4:00pm on a Business Day or on a day notbeing a Business Day, the party shall be deemedto have received the communication on the nextBusiness Day; and

(v) in determining whether a requirement that therebe a period of Business Days' notice in relationto a communication has been satisfied, therelevant number of Business Days shall becalculated from, but excluding, the BusinessDay of deemed receipt.


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(c) The address and facsimile number of each party is thatset out below or such other address or facsimilenumber which that party from time to time givesnotice of to the other party:

STATE: Address—care of the Chief Executive,Roads Corporation, 60 Denmark Street,Kew.

Facsimile number—9655 6670

CLEPCO: Address––care of City Link MelbourneLimited, Level 43, Rialto South31, TowerFive, 525727 Collins Street,MelbourneDocklands.

Facsimile number––9649 7380cxlviv cxlviicxlviii

19.2 Entire Deed

The ESEP Project Documents contain the entire agreementof the parties with respect to the transactions contemplatedby them. There are no understandings, agreements,warranties or representations, express or implied, withrespect to the transactions contemplated by the ESEP ProjectDocuments except for those referred to in them.

19.3 Confidentiality

Each of Clepco and the State shall not disclose anyconfidential or unpublished information or documentssupplied by the other party in connection with the ESEPProject Documents which are specifically identified to beconfidential or which are supplied in circumstances clearlyindicative of their confidential nature. However, thisobligation of non-disclosure does not apply to disclosure:

(a) in any proceedings arising out of or in connection withany ESEP Project Document to the extent that suchdisclosure is deemed by the party making thedisclosure to be necessary to protect its interest;

(b) if required to do so under a binding order or anyprocedure for discovery in any proceedings;

(c) if required to do so under any Law or any directive,request or policy (which, if not having the force ofLaw, the observance of which is in accordance withthe practice of responsible corporate citizens);


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(d) as required or permitted under any ESEP ProjectDocuments;

(e) to legal advisors and consultants, as long as the persondisclosing it advised them of the confidential nature ofthe information or documents or that nature is clearfrom the circumstances of the disclosure;

(f) made with the prior written consent of the other party,which consent may not be unreasonably withheld ordelayed; or

(g) of information or a document already publiclyavailable or in the public domain.

19.4 Further Assurance

Each party shall sign, execute, deliver and do all such actsand things as may reasonably be required of it to carry outand give full effect to this Deed and the rights andobligations of the parties to it.

19.5 Counterparts

This Deed may be executed in any number of counterpartsand all counterparts taken together will constitute one andthe same instrument.——

19.6 CTW

The parties acknowledge the effect of clauses 19.2(b) and19.2(c) of the CTC Redevelopment Deed and give effect toany documents reasonably necessary to comply with clause19.9 of the CTC Redevelopment Deed.


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SCHEDULE 1 CXLVIIX CLVIIICL CLIX

TOLL CALCULATION SCHEDULE

1 Definitions and Interpretation

1.1 Definitions

Burnley Tunnel has the meaning given it in the City LinkConcession Deed.

Bus is a Motor Vehicle having more than 12 seatingpositions (including that of the driver).

Car is a Motor Vehicle, other than a Motor Cycle, a LightCommercial Vehicle or, a Heavy Commercial Vehicle or a High Productivity Freight Vehicle, even if such aMotor Vehicle is towing a trailer or caravan.

Charge Toll for the Tollable Section, a quarter and acategory of Vehicle is the amount set as such inrelation to the Tollable Section, that quarter and thatcategory of Vehicle under Section 3 of this Schedule.

Commercial Vehicles are Light Commercial Vehicles andHeavy Commercial Vehicles.

Completion has the meaning given it in the City LinkConcession Deed.

Date of West Gate Tunnel Tolling Completion has the meaning given to "Date of Tolling Completion" in the WGT Project Agreement.

Fixed Escalation Period means, subject to Schedule 6 to the City Link Concession Deed, the period commencing on and including 1 April 2019 and ending on and including 31 March 2029.

Heavy Commercial Vehicle is:

(a) a rigid Truck with three or more axles;

(b) an articulated Truck;

(c) a Bus; or

(d) a two axle rigid Truck having a gross vehiclemass which exceeds 4.5 tonnes,

but does not include a High Productivity Freight Vehicle during the HPFV Tolling Period.


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High Productivity Freight Vehicle is:

(a) a rigid Truck with three or more axles;

(b) an articulated Truck;

(c) a Bus; or

(d) a two axle rigid Truck having a gross vehicle mass which exceeds 4.5 tonnes,

which has a total length equal to or greater than 26 metres.

HPFV Tolling Period means, subject to Schedule 6 to the City Link Concession Deed, the period commencing on the Date of West Gate Tunnel Tolling Completion and ending on the last day of the City Link Concession Period.

Light Commercial Vehicle is a two axle rigid Truck havinga gross vehicle mass which exceeds 1.5 tonnes, butdoes not exceed 4.5 tonnes.

Motor Cycle is a two wheeled Motor Vehicle (and includessuch a Motor Vehicle even if it has a trailer, fore caror side car attached).

Motor Vehicle is a vehicle which is used or intended to beused on a highway or in a public place and which hasits own motive power (other than human or animalpower) but does not include:

(a) a vehicle intended to be used on a railway ortramway; or

(b) a motorised wheel chair capable of a speed ofnot more than 10 kilometres per hour which isused solely for the conveyance of an injured ordisabled person.

Section has the meaning given it in the City LinkConcession Deed.

Theoretical Toll for the Tollable Section, a category ofVehicle and a particular quarter is the amountcalculated in relation to the Tollable Section, thatcategory of Vehicle and that quarter in accordancewith clauses 2.1, 2.2, 2.3, 2.4 and 2.5.

Tollable Section is the Exhibition Street Extension.


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Truck is a Motor Vehicle other than a Bus which has acab-chassis construction and a gross vehicle masswhich exceeds 1.5 tonnes.

Vehicle is a Motor Vehicle constituted by a Motor Cycle,Car, Light Commercial Vehicle or, HeavyCommercial Vehicle, or High Productivity FreightVehicle.

Weekend is the period of time commencing at 12.00pm(Melbourne local time) on a Friday and ending atmidnight on the Sunday immediately following thatFriday.clxii

West Gate Tunnel has the meaning given to "Freeway" in the WGT Project Agreement.

WGT Day Pass has the meaning given to that term in the WGT Project Agreement.

1.2 Interpretation

In:

(a) calculating a Theoretical Toll under clause 2.2 and2.3; and

(b) setting a Day Toll under clause 5.2,

for the quarter commencing on 1 October 2000 and for eachsubsequent quarter, the Theoretical Toll and Day Toll shallbe calculated or set (as applicable):

(c) as if:

(i) the Theoretical Toll specified in clause 2.1; and

(ii) each respective Day Toll specified in clause5.2(a),

was equal to an amount derived by multiplying therespective Toll so specified in such clause by a factorof one plus the "applicable GST rate", where the"applicable GST rate" is the GST rate (expressed as adecimal number (for example, 10% is 0.1)) whichapplies or is imposed by the GST law on taxablesupplies made by the Company in the quarter forwhich the Theoretical Toll and Day Toll is beingcalculated or set (as applicable); and

(d) as if:


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(i) the Theoretical Toll for each quarter (except thequarter ending 31 March 1995) ending prior tothe quarter for which the Theoretical Toll isbeing calculated; and

(ii) each respective Day Toll for each quarter(except the first quarter in which Clepco set aDay Toll) ending prior to the quarter for whichthe Day Toll is being set,

was calculated or set (as applicable) in accordancewith this Schedule, but as if:

(iii) the Theoretical Toll specified in clause 2.1, wasreplaced by the amount derived underparagraph (c) of this clause 1.2; and

(iv) each respective Day Toll specified in clause5.2(a), was replaced by the amount derivedunder paragraph (c) of this clause 1.2 in respectof such Day Toll.

2 Theoretical Tolls

2.1 The Theoretical Toll for Cars for the Tollable Section forthe quarter ending 31 March, 1995 is $0.50.

2.2 Subject to clause 2.4, the Theoretical Toll for Cars for theTollable Section for a quarter subsequent to the quarterending 31 March, 1995 is calculated in accordance with thefollowing formula:

Theoretical Tollt+1 = Theoretical Tollt x Indext

where:

Theoretical Tollt+1 is the Theoretical Toll for the TollableSection to apply to Cars in the relevant quarter

Theoretical Tollt is the Theoretical Toll for the TollableSection which applies to Cars in the quarter preceding therelevant quarter

Indext is:

(a) subject to paragraph (c), for a quarter ending beforethe 16th anniversary of Completion of the last Sectionto be Completed, the greater of:

(i) the most recently available CPI during thequarter preceding commencement of therelevant quarter (CPIt-1) divided by CPI for the


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quarter preceding the quarter for which the mostrecently available CPI applies (CPIt-2); or

(ii) 10110650 (that is, 45% per annum convertedto a quarterly compound rate plus one);

(b) for a quarter to which paragraphs (a) or (c) do notapply, the greater of one and the amount derivedunder sub-paragraph (a)(i); and

(c) for the quarter ending 31 March 2001,1.015595.1.015595; and

(d) if:

(i) the Date of Parliamentary Support (CityLink) occurs prior to 1 July 2019, for a quarter ending during the Fixed Escalation Period, 1.0104597 (that is, 4.25% per annum converted to a quarterly compound rate plus one); and

(ii) if the Date of Parliamentary Support (CityLink) occurs after 1 July 2019,

(A) for the first quarter ending during the Fixed Escalation Period such escalation as is required to enable the Company to set a Charge Toll which would be the same as if the Date of Parliamentary Support (CityLink) had occurred prior to 1 June 2019; and

(B) for each subsequent quarter ending during the Fixed Escalation Period, 1.0104597 (that is, 4.25% per annum converted to a quarterly compound rate plus one).

2.3 (a) Subject to clause 2.4, the Theoretical Toll for Motor

Cycles for a quarter and the Tollable Section is 05times the Theoretical Toll for Cars for that quarter andTollable Section.

(b) Subject to clause 2.4, the Theoretical Toll for LightCommercial Vehicles for a quarter and the Tollable

Section is 16 times the Theoretical Toll for Cars forthat quarter and Tollable Section.

(c) Subject to clause 2.4, the Theoretical Toll for HeavyCommercial Vehicles for a quarter and the TollableSection is:


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(i) for any quarter commencing prior to 31 March

2017, 19 times the Theoretical Toll for Carsfor that quarter and the Tollable Section: and

(ii) for any quarter commencing on or after 1 April2017:

(A) where the passage of the HeavyCommercial Vehicle on the TollableSection occurs between 6.00 am and 8.00pm, 3.0 times the Theoretical Toll forCars for that quarter and TollableSection; and

(B) where the passage of the HeavyCommercial Vehicle on the TollableSection occurs between 8.00 pm and 6.00am, 2.0 times the Theoretical Toll forCars for that quarter and TollableSection.

(d) Subject to clause 2.4, the Theoretical Toll for High Productivity Freight Vehicles for a quarter ending during the HPFV Tolling Period and a Tollable Section is:

(i) where the passage of the High Productivity Freight Vehicle on the Tollable Section occurs between 6.00 am and 8.00 pm, 4.5 times the Theoretical Toll for Cars for that quarter and Tollable Section; and

(ii) where the passage of the High Productivity Freight Vehicle on the Tollable Section occurs between 8.00 pm and 6.00 am, 3.0 times the Theoretical Toll for Cars for that quarter and Tollable Section.

2.4 The Theoretical Toll so determined for a quarter, theTollable Section and a category of Vehicle is reduced to theextent necessary to ensure that it does not exceed 1.21 timesthe applicable Charge Toll in the preceding quarter for thatcategory of Vehicle, and the Tollable Section. Thisreduction does not apply:

(a) where the category of Vehicle is a Motor Cycle and inthe quarter preceding the relevant quarter no toll waslevied in relation to the use of any part of theExhibition Street Extension for the passage of MotorCycles; or


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(b) for the quarter beginning on 1 April 2017, where thecategory of Vehicle is a Heavy Commercial Vehicle;

(c) for the first quarter of the HPFV Tolling Period, where the category of Vehicle is a Heavy Productivity Freight Vehicle; or

(d) if the Date of Parliamentary Support (CityLink) occurs after 1 July 2019, for the first quarter ending after the Date of Parliamentary Support (CityLink).

If, however, the GST rate (in this clause, the "new GSTrate") which applies or is imposed by the GST law ontaxable supplies made by the Company in the quarter inrespect of which the Theoretical Toll is being calculatedunder clauses 2.2 and 2.3 (in this clause, the "relevantquarter") differs from the GST rate (in this clause, the "oldGST rate") which applied or was imposed by the GST lawon taxable supplies made by the Company in the quarterimmediately preceding the relevant quarter (in this clause,the "previous quarter"), then the reference to "ChargeToll" in this clause 2.4 shall mean "notional Charge Toll",where "notional Charge Toll" means the amount derived bymultiplying the Charge Toll set for the previous quarter by afraction comprising of the numerator equal to the sum of thenew GST rate (expressed as a decimal number) and one andthe denominator equal to the sum of the old GST rate(expressed as a decimal number) and one.

2.5 The Theoretical Toll for the Tollable Section and for eachcategory of Vehicle must be expressed in terms of $ perVehicle and be calculated rounded to four decimal places.Any publication of these figures can be expressed rounded totwo decimal places (that is, expressed rounded to the nearestcent). For the avoidance of doubt, any rounding of a number ending in a 5 will be rounded up.

3. Toll Setting

Clepco shall set a Charge Toll in relation to each category ofVehicle, the Tollable Section and each quarter from andincluding the quarter in which Clepco first becomes entitledto levy tolls under clause 9.3 of this Deed. Subject to clause8.5, only one Charge Toll may be set in relation to acategory of Vehicle, the Tollable Section and a quarter. ACharge Toll so set, however, cannot exceed either:

(a) the Theoretical Toll for the Tollable Section withrespect to that quarter and that category of Vehicle; or


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(b) if four quarters have commenced since Delivery (forthis purpose clause 8.2(h)(ii) shall not apply), theproduct of:

(i) the Charge Toll for the Tollable Section withrespect to that category of Vehicle in the quartercommencing 12 months prior to commencementof the relevant quarter; and

(ii) the result of the formula:

(CPI t-2÷ CPI t-6) + 0.025 where:

CPI t-2= the most recently available CPI duringthe quarter preceding commencement of therelevant quarter; and

CPI t-6 = CPI for the quarter which commences12 months prior to commencement of thequarter to which CPI t-2 applies.

This clause 3(b) does not apply:

(iii) where the category of Vehicle is a Motor Cycle and in the quarter preceding the relevant quarter no toll was levied in relation to the use of any part of the Exhibition Street Extension for the passage of Motor Cycles pursuant to a tolling strategy approved under clause 4;

(iv) for any quarter beginning on or after 1 April2017 and before 31 March 2018, if the categoryof Vehicle is a Heavy Commercial Vehicle; and

(v) for any quarter ending after the commencement of the Fixed Escalation Period.

If, however, the GST rate (in this clause, the "new GSTrate") which applies or is imposed by the GST law ontaxable supplies made by the Company in the quarter inrespect of which a Charge Toll is being set under this clause3.1 (in this clause, the "relevant quarter") differs from theGST rate (in this clause, the "old GST rate") which appliedor was imposed by the GST law on taxable supplies made bythe Company in the quarter commencing 12 months prior tocommencement of the relevant quarter (in this clause, the"previous year's quarter"), then the reference to "ChargeToll" in paragraph (b)(i) of this clause 3.1 shall mean"notional Charge Toll", where "notional Charge Toll" meansthe amount derived by multiplying the Charge Toll set forthe previous year's quarter by a fraction comprising of the


Act No. 107/1995

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numerator equal to the sum of the new GST rate (expressedas a decimal number) and one and the denominator equal tothe sum of the old GST rate (expressed as a decimalnumber) and one. However, in setting a Charge Toll for thequarter ending 31 March 2001, 30 June 2001 or 30September 2001, the reference to "Charge Toll" inparagraph (b)(i) of this clause 3.1 shall mean "notionalCharge Toll", where "notional Charge Toll" means anamount derived by multiplying the relevant Charge Toll setfor the quarter ending 31 March 2000, 30 June 2000 or 30September 2001 (as the case may be) by a factor of 1.1.

Paragraph (b) of this clause does not apply where the category of Vehicle is a Motor Cycle and in the quarter preceding the relevant quarter no toll was levied in relation to the use of any part of the Exhibition Street Extension for the passage of Motor Cycles pursuant to a tolling strategy approved under clause 4.

4. Levying Standard Tolls

Subject to paragraph 9.2(k) and clause 9.3 of this Deed andclauses 7 and 8 below, Clepco may exercise its rights underthis Deed to levy a toll for the use of the Exhibition StreetExtension for the passage of a Vehicle if:

(a) the toll so levied equals the Charge Toll set inaccordance with this Schedule in relation to theTollable Section, with respect to the quarter duringwhich that use occurs and the category of Vehiclewhich applies to the relevant Vehicle; or

(b) the toll so levied is consistent with a detailed tollingstrategy the subject of a then current approval of theState (which approval may be conditional andlimited), being a strategy which:

(i) entails levying tolls at levels different from thatotherwise permitted under this clause 4 butwhich in no event exceed, in relation to aVehicle of a particular category, a quarter andthe Tollable Section, the applicable TheoreticalToll; and

(ii) is (if appropriate) designed to ensure that theaverage weighted toll levied for Vehicles ofeach particular category passing either on theTollable Section during each week of operationof the strategy does not exceed that whichwould be levied were the strategy not to apply


Act No. 107/1995

L\315785296.1L\326396548.18 314

and tolls were levied under paragraph (a). Incalculating that average weighted toll, theweight to be used shall be relevant trafficvolumes, as agreed between Clepco and theState. Clepco acknowledges that (withoutlimiting the State's right to refuse or withhold itsapproval to any proposed strategy) agreementas to relevant traffic volumes during the periodthat it is proposed that a strategy apply will be apre-condition to any approval of the strategy bythe State.

5. Day Tolls

5.1 In this clause 5 and clauses 7 and 8:

(a) Day Pass is:

(i) the grant of a right or authority to use theTollable Section comprising the ExhibitionStreet Extension:

(A.) where subsubparagraph B does not apply,for the passage of a particular Vehicle atany time within a period of 24consecutive hours (but no other period)commencing at the time ofcommencement of the first use; or

(B.) where a customer advises that the time offirst use of a particular Vehicle (not beinga Heavy Commercial Vehicle, a High Productivity Freight Vehicle or a Vehicleto which clause 6 applies) will be duringthe period of time commencing on12.00pm (Melbourne local time) on aFriday and ending at midnight on theSaturday immediately following thatFriday - for the passage of that particularVehicle at any time within a Weekendwhich includes the time of first use asadvised by the customer (but no otherperiod).

For the purposes of this clause 5, references to"where a customer advises" and its cognateexpressions will mean where a customer advises(or has done everything reasonably required tobe done by the customer to advise) Clepco orany person acting on behalf of Clepco through


Act No. 107/1995

L\315785296.1L\326396548.18 315

any means made available to customers for thispurpose; or

(ii) (where consistent with a detailed tollingstrategy under paragraph 5.3(b)(ii) (being adetailed tolling strategy that refers to thisparagraph 5.1(a)(ii))) the grant of a right orauthority to use the Tollable Section comprisingthe Exhibition Street ExtensionforExtension forthe passage of a particular Vehicle at any timewithin a period of 24 consecutive hours (but noother period) commencing at the time ofcommencement of the first use.clxiii

(b) Day Toll is the maximum toll for a Day Pass which,for a quarter and a category of Vehicle, is the amountset as such in relation to that quarter and that categoryof Vehicle under Clause 5.2.

5.2 Clepco shall set a Day Toll for each category of Vehicle foreach quarter from and including the quarter in which Clepcofirst becomes entitled to levy tolls under clause 9.3 of thisDeed. A Day Toll so set, however, cannot exceed:

(a) in relation to the first quarter in which Clepco must soset a Day Toll, where the category of Vehicle is:

(i) Cars, $7.00;

(ii) Motor Cycles, $3.50;

(iii) Light Commercial Vehicles, $11.20; or

(iv) Heavy Commercial Vehicles, $13.30; or

(b) in relation to a quarter to which paragraph (a) does notapply and a particular category of Vehicle:

(i) unless paragraph (ii) or (iii) of this clause 5.2(b)applies, the product of the Indext (as defined inclause 2.2) and the maximum Day Toll whichClepco could have set under this clause 5.2 inrelation to the preceding quarter and therelevant category of Vehicle (with thatmaximum Day Toll to be determined on theassumption that the Day Toll set in eachpreceding quarter was the maximum that couldhave been set under this clause 5.2);

(ii) if the category of Vehicle is a LightCommercial Vehicle, for each quarterbeginning on or after 1 April 2017, 2.6 times


Act No. 107/1995

L\315785296.1L\326396548.18 316

the Theoretical Toll for a Light CommercialVehicle for that quarter; and

(iii) if the category of Vehicle is a HeavyCommercial Vehicle, for each quarterbeginning on or after 1 April 2017, 3.1 timesthe average of:

(A) the Theoretical Toll for the periodbetween 6:00am and 8:00pm; and

(B) the Theoretical Toll for the periodbetween 8:00pm and 6:00am,

for a Heavy Commercial Vehicle for that quarter; and

(iv) if the category of Vehicle is a High Productivity Freight Vehicle, for each quarter during the HPFV Tolling Period, 3.1 times the average of:

(A) the Theoretical Toll for the period between 6:00am and 8:00pm; and

(B) the Theoretical Toll for the period between 8:00pm and 6:00am,

for a High Productivity Freight Vehicle for thatquarter.

5.3 Subject to paragraph 9.2(k) and clause 9.3 of this Deed andclauses 7 and 8 below, Clepco may exercise its rights underthis Deed to levy a toll for the grant of (or agreement togrant) a right or authority to use the Exhibition StreetExtension for the passage of a Vehicle if:

(a) the grant is of a Day Pass in relation to the relevantVehicle;

(b) it ensures that:

(i) the amount of the toll does not exceed the DayToll set in accordance with this Schedule withrespect to the quarter in which the day or thetime of first use as advised by the customer (asapplicable) to which the Day Pass relates occursand the category of Vehicle which applies to therelevant Vehicle; orclxiiv

(ii) the toll so levied is consistent with a detailedtolling strategy the subject of a then currentapproval of the State (which approval may be


Act No. 107/1995

L\315785296.1L\326396548.18 317

conditional and limited), being a strategywhich:

(A) entails levying tolls at levels differentfrom that otherwise permitted under thisclause 5.3 but which in no event exceed,in relation to a Vehicle of a particularcategory and a quarter, the maximumDay Toll which Clepco could have setunder clause 5.2 in relation to that quarterand that category of Vehicle; and

(B) is (if appropriate) designed to ensure thatthe average Day Toll for Vehicles of eachparticular category during each week ofoperation of the strategy does not exceedthat which would be levied were thestrategy not to apply and Day Tolls werelevied under paragraph (b)(i). Clepcoacknowledges that (without limiting theState's right to refuse or withhold itsapproval to any proposed strategy)agreement as to the relevant volumes ofDay Passes during the period that it isproposed that the strategy apply will be apre-condition to any approval of thestrategy by the State.

6. Taxis

6.1 In this clause 6:

(a) Initial Period for Taxis is the period commencing onthe date on which Clepco first becomes entitled tolevy tolls under clause 9.3 of this Deed and ending onthe expiry of the "Initial Period for Taxis" as that termis defined in the City Link Concession Deed;

(b) Taxi is, at any particular time, a Vehicle in relation towhich a commercial passenger vehicle licence (issuedunder the Transport Act 1983) then subsists, being alicence allowing for operation of the Vehicle as aTaxi-Cab (within the meaning of the Transport Act1983);

(c) Automated Taxi Tolling System is a system thatenables the displaying of tolls incurred by a Taxiduring a Trip on the fare meter of that Taxi.

6.2 Before the expiry of the Initial Period for Taxis, Clepco shallnot levy a toll for the passage of a Vehicle on the Tollable


Act No. 107/1995

L\315785296.1L\326396548.18 318

Section where the Vehicle concerned is a Taxi at the time ofthe passage.

6.3 Taxis shall for the purposes of this Schedule be treated asCars on and from expiry of the Initial Period for Taxis.

6.4 Clepco acknowledges and agrees that:

Clepco will during the Initial Period for Taxis(a)continue to develop the Automated Taxi TollingSystem with the objective of implementing theAutomated Taxi Tolling System for use in Taxis priorto the expiry of the Initial Period for Taxis;

Clepco must obtain the State's written approval prior(b)to the implementation of the Automated Taxi TollingSystem for use in Taxis with such approval not to beunreasonably withheld or withheld contrary to clause9.2(f) of this Deed;

in obtaining the State's approval under paragraph (b),(c)Clepco must provide the State with any information ordetails reasonably requested by the State includingresults of testing carried out by Clepco that establishesthat the Automated Taxi Tolling System accuratelyrecords on a fare meter tolls incurred by a Taxi;

if Clepco has obtained the State's approval under(d)paragraph (b), and Clepco is satisfied that theAutomated Taxi Tolling System has been successfullyimplemented, then it may provide the State with anotice for the purpose of clause 6.1(a)(ii);

notwithstanding any approval given by the State under(e)paragraph (b), the State does not make anyrepresentation, give any advice or any warranty of anykind in relation to the operation, use or accuracy ofthe Automated Taxi Tolling System; and

for the avoidance of doubt, during the Initial Period(f)for Taxis, Taxis will not be treated as Cars for thepurposes of this Schedule.


Act No. 107/1995

L\315785296.1L\326396548.18 319

7. Inaccurate Tolling

(a) Clepco shall ensure that a toll is not levied both forthe use of the Exhibition Street Extension for thepassage of a particular Vehicle and for the grant of, oragreement to grant, a right or authority which appliesto that use.

(b) Notwithstanding the obligation set out in paragraph7(a), if:

(i) any of the following situations arise:

(A) a toll is levied under clause 4 or 5.3 ofthis Schedule and the amount of the tollso levied is consistent with the amountwhich Clepco is then entitled to levyunder that clause but the toll should havebeen levied under another such clause; or

(B) more than one toll is levied with respectto the same use, grant or agreement; or

(C) a toll is levied in circumstances whichcontravene paragraph 7(a); and

(ii) the situation outlined in paragraph 7(b)(i) aroseas a result of an event or circumstance theoccurrence or subsistence of which:

(A) was outside the reasonable control ofClepco (so as to include, for example, acircumstance where a toll under clause 4of this Schedule was levied as a result ofa tag being in a Vehicle on a day or at atime (as applicable) when a Day Passapplied to the Vehicle but so as not toinclude, for example, a circumstancewhere a toll under clause 4 of thisSchedule was levied as a result of aVehicle passing on the Exhibition StreetExtension at a time when a Day Passapplies, if there was no tag in theVehicle); andclxiiiv

(B) did not constitute or reflect a breach orcontravention by Clepco of any law or ofany ESEP Project Document (other thana breach that might have arisen but forthe operation of this clause 7),


Act No. 107/1995

L\315785296.1L\326396548.18 320

then the occurrence of the relevant situation shall notof itself be considered to constitute a failure to havelevied a toll in accordance with this Schedule or abreach of the obligations imposed by clause 4 or 5.3of this Schedule, or this clause 7.

8. General

8.1 In order to set a Charge Toll, a Day Toll, and TollAdministration Fee, Clepco must:clxviv

(a) give the State notice of the relevant toll and relevantToll Administration Fee and the quarter in whichClepco intends that it first apply; clxvii

(b) place a notice outlining the relevant toll and relevantToll Administration Fee and the quarter in whichClepco intends that it first apply, in both the VictoriaGovernment Gazette; and clxviii

(ba) place a notice that outlines, in plain language:

(i) tolls and the applicable Toll AdministrationFee for Cars in a prominent part of anewspaper circulating throughout Victoria;and

(ii) tolls and the applicable Toll AdministrationFee for all other classes of Vehicles in thenotice section of a newspaper circulatingthroughout Victoria,

and outlines the quarter in which Clepco intends thatthose tolls and Toll Administration Fees first apply,and provide a means by which the public may viewthese changes.clixvii

Notice so required to be:

(c) placed in the Victoria Government Gazette and anewspaper, must be so placed at least five BusinessDays prior to commencement of the relevant quarter,if it reflects an increase in the relevant toll or relevantToll Administration Fee, or, if it does not reflect suchan increase, prior to commencement of the relevantquarter; and clxviiiclx

(d) given to the State, must be so given at least one monthprior to commencement of the relevant quarter, if itreflects an increase in the relevant toll or relevant TollAdministration Fee, or, if it does not reflect such an


Act No. 107/1995

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increase, prior to commencement of the relevantquarter. clxix

The requirements of paragraphs (c) and (d) of this clause 8.1do not apply to any notices which Clepco places in theVictoria Government Gazette and a newspaper in respect of,and only in respect of, the quarter commencing 1 October2000 or part thereof, being notices so placed within 10Business Days after the Operative Date (as defined in theESEP Third Amending Deed) of the ESEP Third AmendingDeed.

In respect of, and only in respect of, the quarter commencing1 January 2001, paragraph (d) of this clause 8.1 shall applyas if the reference to "at lease one month" was a reference to"at lease five Business Days".

For the avoidance of doubt, this clause 8.1 does not obligeClepco to publish a notice under Section 71 of the ProjectLegislation by the dates described in paragraph 8.1(c).

8.2 A Charge Toll set in accordance with this Schedule inrelation to a category of Vehicle, the Tollable Section and aparticular quarter, (and a Day Toll in relation to a quarterand a category of Vehicle) shall be deemed to have been soset in relation to all succeeding quarters occurring prior to aquarter in respect of which notice is given and placed inaccordance with clause 8.1 indicating a change to therelevant Toll.

8.3 Subject to clauses 4, 5 and 6, Clepco shall not, and shall notpermit or suffer, a toll to be levied in relation to theExhibition Street Extension (or any part of it) or for or inconnection with the use of anything on the Exhibition StreetExtension (or any part of it) other than a fee or chargeimposed in connection with the use of the publictransportation services to which ESEP Ancillary Works andOperations relate.

8.4 Each Charge Toll specified in the notice relating to thisDeed published by Clepco on 22 September 2000 in theVictoria Government Gazette No. S134 in respect of thequarter commencing 1 October 2000, shall be deemed tohave been validly set in accordance with this Schedule, butonly in respect of the period commencing on 1 October 2000and ending two Business Days after the date of publicationof the notice placed by Clepco in the Victoria GovernmentGazette under clause 8.5.


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8.5 If, within 10 Business Days after the Operative Date (asdefined in the ESEP Third Amending Deed) of the ESEPThird Amending Deed, Clepco places notices relating to thisDeed in the Victoria Government Gazette (and a newspaper)in respect of, and only in respect of, the quarter commencing1 October 2000 or part thereof, then each Charge Toll andeach Day Toll specified in the notice so placed in theVictoria Government Gazette shall be deemed to be validlyset in accordance with this Schedule in respect of the periodcommencing three Business Days after the date ofpublication of such notice placed in the VictoriaGovernment Gazette and ending on 31 December 2000.This clause applies notwithstanding any prohibition (whetherexpress or implied) in this Schedule (whether in clause 3 orotherwise) to set only one Charge Toll in respect of aquarter.

8.6 For the purposes of calculating a Theoretical Toll and settinga Charge Toll and a Day Toll in respect of any quartercommencing on or after 1 January 2001, each Charge Tolland each Day Toll specified in the notice placed by Clepcoin the Victoria Government Gazette under clause 8.5 shall bedeemed to be validly set in accordance with this Schedule inrespect of the quarter commencing 1 October 2000.

8.7 For the purposes of clause 8.2 of this Schedule, each ChargeToll and each Day Toll specified in the notice placed byClepco in the Victoria Government Gazette under clause 8.5shall be deemed to be validly set in accordance with thisSchedule in respect of the quarter commencing 1 October2000.

8.8 The Toll Administration Fee specified in the notices relatingto this Deed published by the Company on 9 August 2005 inthe Victoria Government Gazette No. S146, 22 September2005 in the Victorian Government Gazette No. G38 and TheAge Newspaper dated 15 September 2005 shall be deemedto have been validly set in accordance with this Schedulefrom 1 July 2005.clxxii

8.9 Notwithstanding clauses 8.1(c) and 8.1(d) of this Schedule,each Toll Administration Fee for the quarter commencing 1July 2007 shall be deemed to be validly set in accordancewith this Schedule at the maximum applicable levelpermitted by clause 9.2(B) of this Deed for that quarter.

8.10 For the period commencing on the Date of West Gate Tunnel Tolling Completion and ending on the WGT Expiry


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Date, Clepco may grant (or agree to grant) a right or authority to use:

(a) the West Gate Tunnel; or

(b) the West Gate Tunnel and the Exhibition Street Extension,

(or a part of either tollroad) for the passage of a Vehicle for a period of 24 hours if the total amount charged in relation to that right or authority is in accordance with the requirements of the WGT Project Agreement, provided that WGT Co has not levied a toll for the grant (or agreement to grant) of that right or authority under clause 5 of the Toll Calculation Schedule under and as defined in the WGT Project Agreement in respect of that Vehicle.

——


Act No. 107/1995

31 May 2000 31 August 2000

30 November 2001 28 February 2002 12,431

8,468

4 December 1999

28 February 2002 31 May 2002 12,187

29 February 2000

31 August 2000

31 May 2002 31 August 2002 12,213

30 November 2000 8,643

31 August 2002 30 November 2002 12,373

8,785

Column 2Delivery on or before


30 November 2000 28 February 2001

28 February 2003 31 May 2003 12,087

10,814

Column 3Amount ($)

31 May 2003 31 August 2003 12,110

29 February 2000

28 February 2001

31 August 2003 30 November 2003 12,268

31 May 2001 10,681


31 May 2000 8,388

29 February 2004 31 May 2004 12,297

31 May 2001 31 August 2001

31 May 2004 31 August 2004 12,322

10,784

SCHEDULE 2 CLXXIII

LATE DELIVERY CHARGES

31 August 2004 30 November 2004 12,482

Column 1Delivery after

——

31 August 2001 30 November 2001

L\315785296.1L\326396548.18 324

10,925


Act No. 107/1995

31 May 2000 31 August 2000

30 November 2001 28 February 2002 57,600,010

55,500,000

The "Operative Date"as defined in theFourth Amending Deed

28 February 2002 31 May 2002 57,700,000

29 February 2000

31 August 2000

31 May 2002 31 August 2002 57,850,000

30 November 2000 56,150,000

31 August 2002 30 November 2002 57,900,000

54,300,000

Column 2Sunset Date on or before


30 November 2000 28 February 2001

28 February 2003 31 May 2003 58,300,000

56,500,000

Column 3Amount ($)

31 May 2003 31 August 2003 58,600,000

29 February 2000

28 February 2001

31 August 2003 30 November 2003 58,900,000

31 May 2001 56,800,000


31 May 2000 54,875,000

29 February 2004 31 May 2004 59,600,000

31 May 2001 31 August 2001

31 May 2004 31 August 2004 60,000,000

57,150,000

SCHEDULE 3 CLXXIIV

SUNSET DATE PAYMENTS

31 August 2004 30 November 2004 60,600,000

Column 1Sunset Date after

——

31 August 2001 30 November 2001

L\315785296.1L\326396548.18 325

57,450,000


Act No. 107/1995

L\315785296.1L\326396548.18 326

SCHEDULE 4

DISPUTE RESOLUTION SCHEDULE

PART A EXPERT DETERMINATION

Clause

2.5(i) Failure to agree on deemed beneficial effect on net revenue.

2.6(b) Amount of additional revenue for compensable enhancements.

2.9(e) Failure to agree whether an event has an MAE.

2.10(b) Failure to agree on appropriate method or redress for MAE.

3.5(f) Estimates of impacts of late Delivery and infrastructure bondfunding on the Contract Sum and the amounts in Schedule 2.

4.6(d) Land required for the Lease.

7.5(g) Terms and conditions of licence to use ProprietaryDocumentation.

7.6(e) Cost of Variations.

7.7(e) Estimates of impact of changes in ESEP Specification on theContract Sum and amounts in Schedules 2 and 3 or onamendments to the ESEP O & M Requirements.

8.1(g) Estimate of impact of late Delivery and infrastructure bondfunding on the amounts in Schedule 3.

8.2(d)(ii) Clepco's notice involving inspection of works.and (e)

9.12(j) Whether there is an Operating Default.

12.8(d) State risk re Prevention by Law.

13.4(d) State notice regarding insurances.

14.3(c) Revisions to the Traffic Model and the Financial Model.(v)(B)

15.1(c) Contents of a Proposed Remedy Program.

15.1(d) Contents of a State Remedy Program.

15.1(h) Change to the date for achieving a remedy, or any steps in aProposed Remedy Program or State Remedy Program.


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PART B CONCILIATION

Clause

Nil

——


Act No. 107/1995

L\315785296.1L\326396548.18 328

SCHEDULE 5

SCOPE OF ESEP ETTM WORKS

The ESEP ETTM Works shall include Electronic Tolling and TrafficManagement works as described below:

Electronic Tolling

The following works are to be undertaken by Clepco to provide a fullyoperating Tolling System when connected to the Tolling System constructedunder the City Link Project including design, construction and commissioningof:

Tolling gantries including foundations, located to the west of MelbournePark. These gantries will provide support to all of the necessary overheadequipment including beacons, detection and classification equipment andenforcement cameras.

Technical Shelter to be located between the road alignment andMelbourne Park and within 100 metres of the Tolling gantries. TheTechnical Shelter will have access from the Exhibition Street Extensionand provision for two car parking spaces for service vehicles. The preciselocation and appearance of the Technical Shelter and access/ parking is tobe agreed in conjunction with the State.

Communications network including redundant system.Conduits and associated manholes and handholes, to house thecommunications and electrical cabling connecting the Tolling gantries,Technical Shelter and CCTV to the City Link Tolling System.

Electrical and communications cabling connecting to the City LinkControl Centre.

Traffic Management

This work includes the installation of a CCTV camera at the intersection ofSwan Street and Batman Avenue and a CCTV camera to be located within 50metres of the Tolling gantries. All cameras are to provide for pan, tilt andzoom. Works to be undertaken by Clepco include the supply, installation andconstruction of:

CCTV cameras to be located on CCTV masts and foundations.Electrical and communications cabling connecting to the City Link TrafficManagement System for both CCTV cameras.

Conduits, manholes and handholes to accommodate the electrical andcommunications cabling for both CCTV cameras.

——


Act No. 107/1995

The Extension road.

Area on the Extension road

The Schedule as attached shows details of the location of toll zone 12 and isfor illustrative purposes only; the Schedule is not to be used for the purposeof construing this Notice.

This Notice takes effect on [ ].

Dated [ ]

[Execution Clause]

SCHEDULE 6 CLXXIIICLXV

Melbourne City Link Act 1995

NOTICE UNDER SECTION 71(1)

Under section 71(1)(a) of the Melbourne City Link Act 1995 ("the Act"),City Link Extension Pty Ltd ABN 65 082 058 615 (the relevant corporationin relation to the Extension road) specifies the following toll zone on theExtension road:

Toll Zone

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12


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SCHEDULE 7

KPI SCHEDULE

Part A – Definitions

Annual KPI Points means the Operations and Maintenance Annual KPI Points.

CityLink Project Scope and Technical Requirements has the meaning given to “Project Scope and Technical Requirements” in the City Link Concession Deed.

Interim KPI Report has the meaning given in section 4(c) of Part B.

Month means a calendar month.

Operations and Maintenance KPI Liability has the meaning given in section 2(a)(ii) of Part B.

Operations and Maintenance Annual KPI Points has the meaning given in section 1(b)(ii) of Part B.

Operations and Maintenance Annual KPI Points Thresholdmeans the threshold number of KPI Points as set out in Table 2.2 of Part B which must be exceeded before any Operations and Maintenance KPI Liability calculated in accordance with the formula in section 2(a) of Part B will be payable.

Operations and Maintenance KPI Points Value means the monetary value attributable to a KPI Point as set out in Table 2.2 of Part B for the purposes of calculating the Operations and Maintenance KPI Liability.

Quarter means each 3 Month period commencing on a Quarterly Date, except that:

(a) the first Quarter for the purpose of this Schedule 7 will be the period from the WGT Date of Toling Completion until the next Quarterly Date; and (b)


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the last Quarter for the purpose of this Schedule 7 will be the period from the last Quarterly Date during the Concession Period to the end of the Concession Period.

Quarterly Date means every 1 January, 1 April, 1 July and 1 October.

West Gate Tunnel has the meaning given to "Freeway" in the WGT Project Agreement.

Part B – KPI Liability

1. Overview

(a) KPIs will be measured over the relevant Assessment Period set out in Part D in respect of each KPI.

(b) At the end of each financial year:

(i) [not used]; and

(ii) the KPI Points accrued in relation to Operations and Maintenance KPIs for that financial year will be aggregated (Operations and Maintenance Annual KPI Points).

(c) All Annual KPI Points will be reset to zero at the commencement of each financial year and will not carry over to a subsequent financial year.

2. Calculation of KPI Liability

(a) Subject to section 2(b) and section 3, if the:

(i) [not used]

(ii) Operations and Maintenance KPI Points for a financial year exceeds the Operations and Maintenance Annual KPI Points Threshold for that financial year, Clepco must pay the amount calculated in


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accordance with the following formula (Operations and Maintenance KPI Liability):

AKLOM = AKPOM x KVOM

where:

AKLOM = Operations and Maintenance KPI Liability for a financial year

AKPOM = Operations and Maintenance Annual KPI Points in excess of the Operations and Maintenance Annual KPI Points Threshold

KVOM = Operations and Maintenance KPI Points Value

(b) Commencement of KPI Liability

(i) [not used];

(ii) [not used];

(iii) [not used];

(iv) An Operations and Maintenance KPI Liability (or any other consequence under this Deed which arises due to a failure to meet the KPI Benchmark for an Operations and Maintenance KPI), will only be payable from the first full financial year following the end of the CityLink Original Concession Period.

(c) The Operations and Maintenance Annual KPI Points Threshold for each financial year is set out in Table 2.2.


Act No. 107/1995

KPILiability–OperationsandMaintenance

1st full financial year and every full financial year thereafter

750 $1,000

Full financial years from the end of the CityLink Original Concession Period

(e) The Operations and Maintenance KPI Points Value will be escalated in accordance with the formula for escalation of the Theoretical Toll as set out in section 2.2 of the Toll Calculation Schedule commencing from the end of the first full financial year after the end of the CityLink Original Concession Period.

3. KPI Points Caps for Operations and Maintenance KPIs

(a) [not used].

(b) The accrual of KPI Points over each financial year for the Operations and Maintenance KPIs is subject to the following caps:

(i) a maximum annual cap of 10,000 KPI Points will apply in respect of each financial year;

(ii) a maximum 6 monthly cap of 7,000 KPI Points will apply in respect of the first 6 months of each financial year; and

(iii) a maximum cap of 1,500 KPI Points will apply to KPI 8 and KPI 9 in each financial year.

Operations and Maintenance Annual KPI Points Threshold

Operations and Maintenance KPI Points Value

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Table 2.1: [not used]

Table 2.2: KPI Liability for Operations and Maintenance KPIs


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(each an Operations and Maintenance KPI Points Cap and together the Operations and Maintenance KPI Points Caps).

(c) For the avoidance of doubt, any accrual of KPI Points which exceeds:

(i) [not used]; or

(ii) an Operations and Maintenance KPI Points Cap,

will not be included in the calculation of the Annual KPI Points.

(d) In the event that any Operations and Maintenance KPI Points Cap is reached, the State may require a meeting at the senior executive level.

4. Clepco KPI Regime reporting

(a) Clepco must:

(i) [not used]; and

(ii) from the end of the CityLink Original Concession Period, in respect of the Operations and Maintenance KPIs,

monitor the KPIs and provide to the State:

(iii) a report on a quarterly basis in respect of the information contemplated under clause 9A.3(a)(iii) of this Deed for that quarter, within 15 Business Days following the quarters ending on 30 September, 31 December and 31 March each financial year (Quarterly KPI Report); and

(iv) an annual report in respect of the information contemplated under clause


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9A.3(a)(iii) of this Deed for that financial year and the KPI Liability payable by Clepco (if any) for that financial year, within 20 Business Days following the end of the financial year (Annual KPI Report).

(b) The Annual KPI Report must contain a certificate signed by a director of Clepco certifying that the Annual KPI Report, as applicable, is accurate, complete and correct.

(c) From the WGT Date of Tolling Completion to the end of the CityLink Original Concession Period, Clepco must:

(i) monitor the Operations and Maintenance KPIs; and

(ii) in respect of the Operations and Maintenance KPIs, provide to the State an annual report in respect of the information contemplated under clause 9A.3(a)(iii) of this Deed for each financial year, within 20 Business Days following the end of the financial year,

to the extent reasonably possible having regard to the infrastructure, systems and processes in operation on the Exhibition Street Extension, at the time (Interim KPI Report).

(d) The Interim KPI Report must contain a certificate signed by a director of Clepco certifying that the annual report is accurate, complete and correct, having regard to the infrastructure, systems and processes in operation on the Exhibition Street Extension at the time.

5. Payment of KPI Liability

(a) Subject to section 2(b), within 30 Business Days after the date Clepco provides the Annual KPI Report for a financial year, the State must provide to Clepco an invoice stating the amount of KPI Liability payable


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by Clepco (if any) for that financial year (KPI Invoice) and a statement with the reasons for any difference in the amount of KPI Liability set out in the KPI Invoice as compared to the Annual KPI Report.

(b) Clepco must pay the undisputed portion of the amount set out in the KPI Invoice within 20 Business Days of receipt of the KPI Invoice, and if it disputes any amounts within the KPI Invoice, refer those amounts for resolution in accordance with clause 16 of this Deed.

(c) Clepco must pay the amount contemplated under section 5(b) into a community fund which is to be managed by the State.

6. Published KPI performance report

The State may from the WGT Date of Tolling Completion publish a summary report of Clepco’s performance against the KPIs for a financial year which must be consistent with the Annual KPI Report and the Interim KPI Report, provided that the State must:

(a) to the extent reasonably practicable, provide Clepco with a copy of the summary report it proposes to publish no later than 5 Business Days prior to publishing the report;

(b) have regard to any comments that Clepco may have in relation to the summary report;

(c) amend the summary report to reflect the comments provided by Clepco where it is reasonable to do so, or if the State does not amend the summary report to reflect the comments provided by Clepco, notify Clepco of the reasons why the State did not make such amendments;

(d) in respect of the Interim KPI Report, include:

(i) a statement to the effect that the Operations and Maintenance KPIs come into effect at the end of the CityLink


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Original Concession Period and before that time:

A. Clepco’s performance against the Operations and Maintenance KPIs are required to be reported only; and

B. Clepco will develop the necessary infrastructure, systems and processes to be able to meet the KPI Benchmarks by the end of the CityLink Original Concession Period; and

(ii) any explanatory information reasonably provided by Clepco in relation to any under performance against a KPI. Where any explanatory information provided by Clepco in relation to the underperformance against a KPI is not included, the State will notify Clepco of the reasons why the State did not include such information.

7. Waiver

Clepco may request a waiver from the State in respect of any accrual of KPI Points or liability to pay any KPI Liability, including:

(a) to the extent that the accrual of KPI Points or KPI Liability has been caused or contributed to by an event or circumstance giving rise to a KPI Event (Relevant Event) which is extraordinary, unusual or beyond the reasonable control of Clepco; or

(b) where Clepco has provided reasonable redress to users of the Exhibition Street Extension or the West Gate Tunnel (as applicable) affected by the Relevant Event,


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and the State must not unreasonably withhold or delay the granting of such waiver.

8. General

(a) Where the KPI Benchmarks in respect of a KPI are expressed as a percentage, in determining whether Clepco has met or failed to meet the KPI Benchmark for that KPI and for the purposes of reporting on Clepco’s performance in any Quarterly KPI Report or Annual KPI Report:

(i) all rounding of KPI percentage calculations are to be based on the principle of 5/4 rounding; and

(ii) all KPI percentage calculations are to be performed (including rounding) to a level of accuracy of one decimal point greater than the relevant KPI Benchmark or KPI Benchmark range.

(b) Where the occurrence of an incident, event or circumstance gives rise to multiple KPI Events, KPI Points will only accrue in respect of the KPI Event which results in the greatest accrual of KPI Points attributable to that incident, event or circumstance.

(c) The examples provided for each of the KPIs are for illustrative purposes and in the event of any inconsistency, ambiguity or discrepancy between the examples and any other part of the KPIs, those parts of the KPIs will take precedence over the examples.

Part C – [not used]


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Part D – Key Performance Indicators – Operations and Maintenance

For the purposes of KPIs 8 and 9:

(a) Asset means a physical component of the Exhibition Street Extension and includes each part of that physical component (which is typically divided into components and sub-components).

(b) On or before the date which is 60 months before the end of the CityLink Original Concession Period, Clepco must provide the State with a code of maintenance standards:

(i) includes maintenance standards which will enable Clepco to comply with the requirements of this Deed in respect of the maintenance of the Exhibition Street Extension; and

(ii) clearly defines inspection principles, the frequency of inspections, intervention levels and maximum acceptable maintenance response times,

which, for the avoidance of doubt, is solely for the purposes of KPIs 8 and 9 (Code of Maintenance Standards).

(c) Maintenance standards must be defined in the Code of Maintenance Standards for appropriate Asset categories, including roadside Assets, and must include:

(i) the specific performance standards that must be maintained;

(ii) potential defects or hazards which could affect each performance standard;


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(iii) clearly defined intervention levels for each potential defect or hazard;

(iv) the intervention level at which the defect must be rectified or the hazard removed;

(v) the period within which the defect must be rectified or hazard removed once the relevant intervention level has been reached;

(vi) condition indicators and condition ratings for the relevant performance standard;

(vii) the minimum frequency for:daytime and, as required, A.night time inspections including for defects and condition rating inspections;

the maintenance activities. B.As a minimum, these activities include:

lighting; 1)

Burnley Tunnel and 2)Domain Tunnel ventilation;

Burnley Tunnel and 3)Domain Tunnel safety systems;

pavement 4)maintenance;

safety barrier 5)realignment, repair or replacement;

hazard rectification;6)


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cleanliness of tunnel 7)linings;

litter control; and8)

grass and weed 9)control.

(d) The maintenance standards provided to the State must be prepared in a manner consistent with the conduct of a Good Practice Operator, without limiting and subject to Clepco’s obligation to maintain the Exhibition Street Extension in accordance with this Deed.

(e) Clepco may depart from and/or amend any scheduled activity, intervention, process, standard or other provision set out in the Code of Maintenance Standards provided that such departure and/or amendment (as applicable) is consistent with Clepco’s obligation to maintain the Exhibition Street Extension in accordance with this Deed and Clepco must provide the State with a copy of any amended Code of Maintenance Standards (where applicable)

For the purpose of KPI 11:

Bus, Car, Light Commercial Vehicle, Heavy Commercial Vehicle, High Productivity Freight Vehicle, Motor Cycle and Truck has the meaning given to those terms in the Toll Calculation Schedule.

For the purposes of KPIs 12, 13, 14, 16 and 17:

System Availability means the value calculated in accordance with the following formula:

System Availability =

where:


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HP = number of hours in the Assessment Period;

ND = number of individual Devices;

HL = aggregate total number of hours for which individual Devices are unavailable or not operational in the Assessment Period (whether simultaneously or otherwise), aggregated for each Device rounded up to the nearest hour (e.g. if 1 Device has 20 minutes of unavailability in the Assessment Period, and a second Device has 1 hour and 15 minutes of unavailability in the Assessment Period, HL = 2).

Device means the last item in the system that interacts with or monitors the user of the Exhibition Street Extension;

NA = aggregate total number of hours (aggregated for each Device and rounded up to the nearest hour) in the Assessment Period in respect of which:

Clepco can demonstrate to the State’s reasonable satisfaction that a Device did not need to be operational; or

a relevant Device or system is unavailable due to:

a breach by the State of an ESEP Project Document;

an Appendix Event;

a relevant event (as defined in clause 15.6);

a Force Majeure Event;

an FMS Failure;

faults or damage caused by third party service providers or other civil


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contractors not engaged by Clepco and/or OpCo which cannot reasonably be mitigated by Clepco;

road space availability - where a fault, defect or inoperability is detected on any of the systems during peak periods (6am - 8pm weekdays) Clepco is not required to address this issue if it would require lane closures or reduced speed limits to do so. Where these instances occur, these hours will be deducted from the System Availability calculation;

restrictions or controls imposed by the Emergency Services;

events beyond the reasonable control of Clepco or OpCo (including where damage is caused by traffic incidents or a third party), and the effects of which cannot reasonably be minimised, mitigated or avoided by Clepco or OpCo;

defects in systems maintained by the State or its Associates independently of Clepco, OpCo and their respective contactors causing Device or system outages;

a defect in or unavailability of a VicRoads nominated supplier device (only


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when spares or replacements are not reasonably available);

actions reasonably required to comply with a direction from the State or its Associates in accordance with this Deed or otherwise lawfully given;

outage of the relevant Device during a period of planned maintenance of the Device or an underlying system in accordance with the CityLink Project Scope and Technical Requirements, the Operation and Maintenance Manuals, the ESEP O & M Requirements and the Code of Maintenance Standards (as defined for the purposes of KPIs 8 and 9);

Devices not accessible or available due to major road works;

a failure by the State to comply with its obligations, or an exercise by the State of its rights, under the FMS Operating Agreement; or

Utility Interruption.


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From To

Assessment Period

KPI 8 – Planned Maintenance in scheduled intervals of six months or less

Perform planned maintenance and inspection activities for which the scheduled interval required by the Code of Maintenance Standards is six months or less as follows:

for activities scheduled to be carried out on a daily cycle, the required timeframe is each day; and

for activities scheduled to be carried out on a cycle longer than one day, the required timeframe is the last day within that cycle plus 25% of the cycle time.

95% 100%0 points per Occurrence.

Quarterly

KPI description

90% <95%10 points per

additional Occurrence.

Percentage of activities completed within required

timeframe

<90%20 points per


Interpretation

For this KPI 8:

Occurrence means each planned maintenance or inspection activity to be performed pursuant to the Code of Maintenance Standards for which the scheduled interval is six months or less that is not carried out within the required timeframe set out in this KPI 8.

Where the number of maintenance or inspection activities to be carried out within the required timeframe to achieve a percentage benchmark is not a whole number, the required number will be rounded up to the nearest whole number.

KPI Benchmark

KPI Points

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Example

The Code of Maintenance Standards provided for 217 relevant planned maintenance or inspection activities to be performed during a Quarter, of which 191 were carried out within the required timeframe during the Quarter.

Clepco’s performance for the Quarter against this KPI is: (191/217) x 100 = 88.0%.

95% achievement for the Quarter would have required 207 (206.2 rounded up) planned maintenance and inspection activities to have been carried out within the required timeframe. This is calculated as follows: 217 x 95% = 206.2 rounded up to 207.


Accordingly, there were 11 additional Occurrences between the range of 90% and less than 95% and five additional Occurrences below 90% achievement for the Quarter.

The KPI Points accrued under this KPI for the Quarter would be calculated as follows:

((207-196) x 10) + ((196 – 191) x 20) = 110 + 100 = 210 KPI Points.


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From To

Assessment Period

KPI 9 – Planned Maintenance in scheduled intervals greater than 6 months

Perform planned maintenance and inspection activities for which the scheduled interval required by the Code of Maintenance Standards is greater than six months as follows:

The required timeframe for these inspection and maintenance activities to be carried out is within 30 days after the end of the scheduled interval.

95% 100%0 points per Occurrence.

Quarterly

KPI description

90% <95%10 points per


Percentage of activities completed within required

timeframe

<90%20 points per


Interpretation

For this KPI 9:

Occurrence means each planned maintenance or inspection activity to be performed pursuant to the Code of Maintenance Standards for which the scheduled interval is greater than six months that is not carried out within the required timeframe set out in this KPI 9.

Where the number of maintenance or inspection activities to be carried out within the required timeframe to achieve a percentage benchmark is not a whole number, the required number will be rounded up to the nearest whole number.

KPI Benchmark

KPI Points

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Example

The Code of Maintenance Standards provided for 630 relevant planned inspection or maintenance activities to be performed during the Quarter (that is within 30 days after the end of the scheduled interval), of which 560 were carried out within 30 days after the end of the scheduled interval.

Clepco’s performance for the Quarter against this KPI is (560/630) x 100 = 88.8 rounded up to 89%.


90% achievement for the Quarter would have required 567 planned maintenance and inspection activities to have been carried out within the required timeframe. This is calculated as follows: 630 x 90% = 567.

Accordingly, there were 32 additional Occurrences between the range of 90% and less than 95% and 7 additional Occurrences below 90% achievement for the Quarter.


[(599 - 567) x 10] + [(567 - 560) x 20] = 320 + 140 = 460 KPI Points.


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Assessment Period

KPI 10 – Traffic Incident Response Performance

Respond to Traffic Incidents within 15 minutes after identification or receiving notification of the Traffic Incident.

80% 100% 0 pointsMonthly

KPI description

75% <80% 10 points

Range

70% <75% 50 points

KPI Benchmark

<70% 100 points

KPI Points

Interpretation

For this KPI 10:

CityLink Service Area has the meaning given in the IRS Agreement.

IRS Agreement means the document entitled ‘Incident Response Services Agreement' between OpCo and VicRoads dated 1 November 2018.

Respond or Responded to means arrival of Clepco's incident response crew at the site of the relevant Traffic Incident.

In the event that the IRS Agreement has not been entered into or has expired or terminated in respect of the CityLink Service Area:

Traffic Incident means any unplanned event which:

(a) prevents or is likely to prevent the Exhibition Street Extension or any relevant part of the Exhibition Street Extension from being open to the public

From

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To


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for the safe, continuous and efficient passage of vehicles; or

(b) otherwise requires an urgent response to provide Emergency Services with access to the Exhibition Street Extension.

The parties acknowledge and agree that the timeframes within which a Traffic Incident must be Responded to in accordance with this KPI 10 will not apply to:

(a) any Traffic Incident where:

(i) a closure of any part of the road network by the State or its Associates;

(ii) a user of the Exhibition Street Extension or other third party, including public transport (except where such third party is an Associate of Clepco);

(iii) a failure by the State to comply with clause 4.2(a) of the Lease;

(iv) a failure by the State to comply with its obligations, or an exercise by the State of its rights, under the FMS Operating Agreement;

(v) an Appendix Event;

(vi) a breach by the State of an ESEP Project Document;

(vii) a relevant event (as defined in clause 15.6);

(viii) an FMS Failure; or


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(ix) a Force Majeure Event,

prevents, disrupts or hinders the ability of Clepco or its Associates to Respond to that Traffic Incident within the required timeframe, or

(b) any Traffic Incident which:

(i) results in the State or other Government Agency assuming control of any part of the Exhibition Street Extension (including to allow access for Emergency Services vehicles) or intervening in any part of the management of a Traffic Incident; or

(ii) to Respond within the required timeframe would pose a serious risk to the health or safety of any person,

to the extent that the Traffic Incident was not caused or contributed to by a failure of Clepco to comply with the ESEP Project Documents or any other act or omission of Clepco or any of its Associates.

In the event that the IRS Agreement has been entered into and has not expired or terminated in respect of the CityLink Service Area:


(a) prevents or is likely to prevent the Exhibition Street Extension or the CityLink Service Area or any relevant part of the Exhibition Street Extension or the CityLink Service Area from being open to the public for the safe, continuous and efficient passage of vehicles; or


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(b) otherwise requires an urgent response to provide Emergency Services with access to the Exhibition Street Extension or the CityLink Service Area.

The parties acknowledge and agree that the timeframes within which a Traffic Incident must be Responded to in accordance with this KPI 10 will not apply:

(a) to the extent that a Relief Event (as defined in the IRS Agreement) applicable to that Traffic Incident has prevented, hindered or disrupted the performance of OpCo’s Activities (as defined in the IRS Agreement);

(b) where VicRoads takes over management of the Traffic Incident in accordance with the IRS Agreement;

(c) to any Traffic Incident where:






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prevents, disrupts or hinders the ability of Clepco or its Associates to Respond to that Traffic Incident within the required timeframe, or

(d) to any Traffic Incident which:

(i) results in the State or other Government Agency assuming control of any part of the Exhibition Street Extension (including to allow access for Emergency Services vehicles) or intervening in any part of the management of a Traffic Incident; or

(ii) to Respond within the required timeframe would pose a serious risk to the health or safety of any person,

to the extent that the Traffic Incident was not caused or contributed to by a failure of Clepco to comply with the Project Documents or any other act or omission of Clepco or any of its Associates.


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Example

During a month, 106 Traffic Incidents occurred and 80 were Responded to within 15 minutes.

Clepco’s performance for the month against this KPI is (80/106) x 100 = 75.5% rounded up to 76%. This is in the range of 75% and less than 80% in the KPI table.

10 KPI Points would accrue under this KPI for the month.


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KPI PointsFrom To

Assessment Period

KPI 11 – Traffic Incident Clearance Performance in 30 Minutes

Traffic Incidents to be Cleared within 30 minutes after identification or receiving notification of the Traffic Incident.

70% 100% 0 points Monthly

KPI description

<70% 100 points

Range

Interpretation

For this KPI 11:

CityLink Service Area has the meaning given in the IRS Agreement.

IRS Agreement means the document entitled ‘Incident Response Services Agreement' between OpCo and VicRoads dated 1 November 2018.

In the event that the IRS Agreement has not been entered into or has expired or terminated in respect of the CityLink Service Area:

Clear or Cleared means that all lanes on the Exhibition Street Extension (excluding any shoulders) affected by the relevant Traffic Incident are clear for the safe, continuous and efficient passage of vehicles; and


(a) prevents or is likely to prevent the Exhibition Street Extension or any relevant part of the Exhibition Street Extension from being open to the public for the safe, continuous and efficient passage of vehicles; or

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KPI Benchmark


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(b) otherwise requires an urgent response to provide Emergency Services with access to the Exhibition Street Extension.

The parties acknowledge and agree that the timeframes within which a Traffic Incident must be Cleared in accordance with this KPI 11 will not apply to:

(a) any Traffic Incident where:











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prevents, disrupts or hinders the ability of Clepco or its Associates to Clear that Traffic Incident, or

(b) any Traffic Incident which:

(i) results in the State or other Government Agency assuming control of any part of the Exhibition Street Extension (including to allow access for Emergency Services vehicles) or intervening in any part of the management of a Traffic Incident;

(ii) requires the assistance of an accident allocation tow truck, heavy salvage or specialist equipment or specialist subcontractors;

(iii) involves an abandoned vehicle on a lane on the Exhibition Street Extension which is not a traffic running lane;

(iv) involves Heavy Commercial Vehicles, High Productivity Freight Vehicles or Cars towing a trailer or caravan;

(v) requires the clean-up of spills or repair of damage to the Exhibition Street Extension;

(vi) to Clear within the required timeframe would pose a serious risk to the health or safety of any person,


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to the extent that the Traffic Incident was not caused or contributed to by a failure of Clepco to comply with the ESEP Project Documents or any other act or omission of Clepco or any of its Associates.

In the event that the IRS Agreement has been entered into and has not expired or terminated in respect of the CityLink Service Area:

Cleared means that all lanes on the Exhibition Street Extension (excluding any shoulders) or traffic lanes in the CityLink Service Area (as defined in the IRS Agreement, excluding any shoulders) affected by the relevant Traffic Incident are clear for the safe, continuous and efficient passage of vehicles;


(a) prevents or is likely to prevent the Exhibition Street Extension or the CityLink Service Area or any relevant part of the Exhibition Street Extension or the CityLink Service Area from being open to the public for the safe, continuous and efficient passage of vehicles; or

(b) otherwise requires an urgent response to provide Emergency Services with access to the Exhibition Street Extension or the CityLink Service Area; and

The parties acknowledge and agree that the timeframes within which a Traffic Incident must be Cleared in accordance with this KPI 11 will not apply:

(a) to the extent that a Relief Event (as defined in the IRS Agreement) applicable to that Traffic Incident has prevented, hindered or disrupted the performance of OpCo’s Activities (as defined in the IRS Agreement);


Act No. 107/1995

L\315785296.1L\326396548.18 359

(b) where VicRoads takes over management of the Traffic Incident in accordance with the IRS Agreement;

(c) any Traffic Incident where:










prevents, disrupts or hinders the ability of Clepco or its Associates to Clear that Traffic Incident, or


Act No. 107/1995

L\315785296.1L\326396548.18 360

(d) any Traffic Incident which:

(i) results in the State or other Government Agency assuming control of any part of the Exhibition Street Extension (including to allow access for Emergency Services vehicles) or intervening in any part of the management of a Traffic Incident;

(ii) requires the assistance of an accident allocation tow truck, heavy salvage or specialist equipment or specialist subcontractors;

(iii) involves an abandoned vehicle on a lane on the Exhibition Street Extension which is not a traffic running lane;

(iv) involves Heavy Commercial Vehicles, High Productivity Freight Vehicles or Cars towing a trailer or caravan;

(v) requires the clean-up of spills or repair of damage to the Exhibition Street Extension;

(vi) to Clear within the required timeframe would pose a serious risk to the health or safety of any person,

to the extent that the Traffic Incident was not caused or contributed to by a failure of Clepco to comply with the Project Documents or any other act or omission of Clepco or any of its Associates.


Act No. 107/1995

L\315785296.1L\326396548.18 361

Example

During a month, 106 Traffic Incidents occurred and 50 Traffic Incidents were Cleared within 30 minutes after identification or receiving notification of the Traffic Incident.

Clepco’s performance for the month against this KPI is (50/106) x 100 = 47.17% rounded to 47% of the Traffic Incidents were Cleared within 30 minutes.

100 KPI Points would accrue under this KPI for the month.


Act No. 107/1995

Assessment Period

KPI 12 – Road Safety Camera Electrical Availability

System Availability of the road safety camera electrical system

99% 100% 0

Quarterly

KPI description

98.5% <99% 50

Availability Range

97% <98.5% 100

KPI Benchmark

<97% 150

KPI Points

Interpretation

For this KPI 12:

Road safety camera electrical system means the power supply to each distribution board within Clepco’s responsibility to operate and maintain under the ESEP Project Documents, that supplies power to the Department of Justice and Regulation’s road safety camera sites.

Example

In a Quarter the total hours are 2,160 (HP) and the road safety camera electrical system which consists of 6 Devices (ND) is measured to be unavailable for 250 hours (HL) during the Quarter. Of those hours when the Devices are unavailable 50 hours are identified as NA under the definition of System Availability. The System Availability is therefore calculated as:

(2160 x 6) - 250) / ((2160 x 6) - 50) x 100 = 12,710 / 12,910) x 100 = 98.45%

This is within the range of 97% to less than 98.5% in the KPI table.

100 KPI Points would accrue under this KPI for the Quarter.

From

L\315785296.1L\326396548.18 362

To


Act No. 107/1995

Assessment Period

KPI 13 – Lane Use Management System Availability

System Availability of the Lane Use Management System

99.8% 100% 0

Quarterly

KPI description

98.5% <99.8% 50

Availability Range

97% <98.5% 100

KPI Benchmark

<97% 150

KPI Points

Interpretation

For this KPI 13:

Lane Use Management System means the lane use signals as required under the CityLink Project Scope and Technical Requirements to the extent they are located on the Exhibition Street Extension. For the avoidance of doubt, this KPI 13 does not require or impose an obligation on Clepco to procure or install any lane use signals where they are not otherwise required by clause 14.3(d) of this Deed or any other provision of the ESEP Project Documents.

Example

In a Quarter the total hours are 2,160 (HP) and the Lane Use Management System which consists of 100 Devices (ND) is measured to be unavailable for 5,000 hours (HL) during the Quarter. Of those hours when the Devices are unavailable 900 hours are identified as NA under the definition of System Availability. The System Availability is therefore calculated as:

((2160 x 100) - 5000) / ((2160 x 100) - 900) x 100 = (211,000 / 215,100) x 100 = 98.09%



From

L\315785296.1L\326396548.18 363

To


Act No. 107/1995

Assessment Period

KPI 14 – Traffic Data System Availability

System Availability of the Traffic Data System

80% 100% 0

Quarterly

KPI description

70% <80% 50

Availability Range

60% <70% 100

KPI Benchmark

<60%150

KPI Points

Interpretation

For this KPI 14:

Traffic Data System means the traffic counting stations as required under the CityLink Project Scope and Technical Requirements to the extent they are located on the Exhibition Street Extension. For the avoidance of doubt, KPI 14 and KPI 15 do not require or impose an obligation on Clepco to procure or install any traffic counting stations where they are not otherwise required by clause 14.3(d) of this Deed or any other provision of the ESEP Project Documents.

Example

In a Quarter the total hours are 2,160 (HP) and the Traffic Data System which consists of 30 Devices (ND) is measured to be unavailable for 25,000 hours (HL) during the Quarter. Of those hours when the Devices are unavailable 900 hours are identified as NA under the definition of System Availability. The System Availability is therefore calculated as:

((2160 x 30) - 25,000) / ((2160 x 30) - 900) x 100 = (39,800 / 63,900) x 100 = 62.28%

This is within the range of 60% to less than 70% in the KPI table.100 KPI Points would accrue under this KPI for the Quarter.

From

L\315785296.1L\326396548.18 364

To


Act No. 107/1995

KPI description

Where the State provides written notice to Clepco that a Device which forms part of the Traffic Data System is inoperable due to a fault in the Device, the Device must be replaced or the fault in the Device must be rectified within 90 days following the issuance of written notice.

<100%1 point per Occurrence for every subsequent 10 days until replacement or rectification

Quarterly

KPI Benchmark

Interpretation

For this KPI 15:

Occurrence means each Device which is not replaced or rectified within the timeframe contemplated under this KPI 15.

Traffic Data System has the meaning given in KPI 14.

This KPI 15 does not apply in the event that the following occurs:

(a) an Appendix Event;

(b) a breach by the State of an ESEP Project Document;

(c) a relevant event (as defined in clause 15.6);

(d) a Force Majeure Event;

(e) faults or damage to the relevant Device caused by third party service providers or other civil contractors not engaged by Clepco and/or OpCo

KPI PointsAssessment

Period

L\315785296.1L\326396548.18 365

KPI 15 – Traffic Data System Device Repair Time


Act No. 107/1995

L\315785296.1L\326396548.18 366

which cannot reasonably be mitigated by Clepco or OpCo;

(f) restrictions or controls imposed by the Emergency Services;

(g) events beyond the reasonable control of Clepco or OpCo (including where the fault to the relevant Device was caused by a traffic incident or any other act of a third party), and the effects of which cannot reasonably be minimised, mitigated or avoided by Clepco or OpCo;

(h) a defect in or unavailability of a VicRoads nominated supplier device (only when spares or replacements are not reasonably available);

(i) a direction is given to Clepco by the State or its Associates in accordance with this Deed or Law which Clepco must comply with and which prevents, disrupts or hinders the ability of Clepco to comply with this KPI 15 within the required timeframe; or

(j) the relevant Device is not accessible or available due to major road works which prevents, disrupts or hinders the ability of Clepco to comply with this KPI 15 within the required timeframe.

Example

The State has provided a written notice for 70 Devices with faults to be replaced or rectified during a quarter, of which 50 were carried out within the required timeframe.

Accordingly, there were 20 Occurrences for the Quarter. Of those 20 Occurrences, 12 Occurrences were the result of the relevant Devices being replaced or rectified 9 days after the required timeframe and 8 Occurrences were the result of the relevant Devices being replaced or rectified 14 days after the required timeframe.



Act No. 107/1995

L\315785296.1L\326396548.18 367

(12 x 1) + (8 x 2) = 28 KPI Points.


Act No. 107/1995

Assessment Period

KPI 16 – Automatic Incident Detection System Availability

System Availability of the Automatic Incident Detection System

99.9% 100% 0

Quarterly

KPI description

98.5% <99.9% 50

Availability Range

97% <98.5% 100

KPI Benchmark

<97% 150

KPI Points

Interpretation

For this KPI 16:

Automatic Incident Detection System means the automatic incident detection system as required under the CityLink Project Scope and Technical Requirements to the extent they are located on the Exhibition Street Extension. For the avoidance of doubt, this KPI 16 does not require or impose an obligation on Clepco to procure or install an automatic incident detection system, or devices relating to or in connection with an automatic incident detection system, where these are not otherwise required by clause 14.3(d) of this Deed or any other provision of the ESEP Project Documents.

Example

In a Quarter the total hours are 2,160 (HP) and the Automatic Incident Detection System which consists of 75 Devices (ND) is measured to be unavailable for 2,000 hours (HL) during the quarter. Of those hours when the Devices are unavailable 900 hours are identified as NA under the definition of System Availability. The System Availability is therefore calculated as:

((2160 x 75) - 2000) / ((2160 x 75) - 900) x 100 = 160,000 / 161,100 x 100 = 99.32%.

This is within the range of 98.5% to less than 99.9% in the KPI table.

From

L\315785296.1L\326396548.18 368

To


Act No. 107/1995

L\315785296.1L\326396548.18 369



Act No. 107/1995

Assessment Period

KPI 17 – Closed Circuit Television System Availability

System Availability of the Closed Circuit Television System

99.9% 100% 0

Quarterly

KPI description

98.5% <99.9% 50

Availability Range

97% <98.5% 100

KPI Benchmark

<97% 150

KPI Points

Interpretation

For this KPI 17:

Closed Circuit Television System means the closed circuit television system as required under the ESEP O & M Requirements.

Example

In a Quarter the total hours are 2,160 (HP) and the Closed Circuit Television System which consists of 50 Devices (ND) is measured to be unavailable for 3,000 hours (HL) during the Quarter. Of those hours when the Devices are unavailable 900 hours are identified as NA under the definition of System Availability. The System Availability is therefore calculated as:

((2160 x 50) - 3,000) / ((2160 x 50) - 900) x 100 = 105,000 / 107,100 x 100 = 98.04%



From

L\315785296.1L\326396548.18 370

To


Act No. 107/1995

20 points per Occurrence

Quarterly

KPI Benchmark KPI Points

Where the State provides written notice to Clepco that a Device which forms part of the Freeway Ramp Signal System is:

inoperable due to a fault in the Device (a)(such notice to include details of the fault to the extent known by the State); and

Clepco is not permitted to implement a (b)Lane Closure without the State’s prior approval, in order to replace the Device or rectify the fault in the Device,

Clepco must:

provide a written request to the State for (i)

<100% 20 points per Occurrence

Quarterly

Assessment Period

KPI 18 – Freeway Ramp Signal Repair time

KPI description

Where the State provides written notice to Clepco that a Device which forms part of the Freeway Ramp Signal System is:

inoperable due to a fault in the Device (a)(such notice to include details of the fault to the extent known by the State); and

Clepco is permitted to implement a Lane (b)Closure without the State’s prior approval, in order to replace the Device or rectify the fault in the Device,

the Device must be replaced or the fault in the Device must be rectified within 48 hours of notification by the State or such longer period as agreed between the parties acting reasonably.

L\315785296.1L\326396548.18 371

<100%


Act No. 107/1995

KPI description KPI Benchmark

Interpretation

For this KPI 18:

Approved Closure Window means a continuous period of no less than 48 hours to be nominated by the State in writing acting reasonably, during which Clepco may implement a Lane Closure to replace the Device or rectify the fault in the Device.

Freeway Ramp Signal System means the ramp meters as required under the CityLink Project Scope and Technical Requirements to the extent they are located on the Exhibition Street Extension. For the avoidance of doubt, this KPI 18 does not require or impose an obligation on Clepco to procure or install any ramp meters where they are not otherwise required by clause 14.3(d) of this Deed or any other provision of the ESEP Project Documents.

Lane Closure means each separate instance in which a lane on the Exhibition Street Extension (excluding any shoulder used as an emergency stopping lane) is not open to users of the Exhibition Street Extension for the safe, efficient and continuous passage of vehicles.

Occurrence means:

(a) each occasion Clepco fails to provide a written request to the State for an Approved Closure Window within the timeframe set out in this KPI 18;

an Approved Closure Window within 48 hours; and

replace the Device or rectify the fault in (ii)the Device within the Approved Closure Window or such longer period as agreed between the parties acting reasonably.

KPI Points

L\315785296.1L\326396548.18 372

Assessment Period


Act No. 107/1995

L\315785296.1L\326396548.18 373

(b) each Device which is not replaced or rectified within the timeframe contemplated under this KPI 18.

This KPI 18 does not apply in the event that the following occurs:

(a) an Appendix Event;

(b) a breach by the State of an ESEP Project Document;

(c) a relevant event (as defined in clause 15.6);

(d) a Force Majeure Event;

(e) faults or damage to the relevant Device caused by third party service providers or other civil contractors not engaged by Clepco or OpCo which cannot reasonably be mitigated by Clepco or OpCo;

(f) events beyond the reasonable control of Clepco or OpCo (including where the fault to the relevant Device was caused by a traffic incident or any other act of a third party), and the effects of which cannot reasonably be minimised, mitigated or avoided by Clepco or OpCo;

(g) a defect in or unavailability of a VicRoads nominated supplier device (only when spares or replacements are not reasonably available);

(h) a direction is given to Clepco by the State or its Associates in accordance with this Deed or Law which Clepco must comply with and which prevents, disrupts or hinders the ability of Clepco to comply with this KPI 18 within the required timeframe; or

(i) the Device is not accessible or available due to major road works which prevents, disrupts or hinders the ability of Clepco to comply with this KPI 18 within the required timeframe.


Act No. 107/1995

L\315785296.1L\326396548.18 374

Example

In the quarter, the State provides written notice to Clepco that there are 6 Devices which form part of the Freeway Ramp Signal System which are inoperable due to faults in the Devices.

Clepco rectifies 5 faults within 48 hours of receiving the State’s written notice (or within the Approved Closure Window as applicable) and 1 fault within 50 hours of receiving the State’s written notice (or outside the Approved Closure Window as applicable)


(5 x 0) + (1 x 20) = 20 KPI Points

[Schedule to be attached]

——


Act No. 107/1995

SIGNED, SEALED andDELIVERED by THEHONOURABLE ROBERT R.C.MACLELLAN, Minister forPlanning and Local Government ofthe State of Victoria for and on behalfof the Crown in Right of the State ofVictoria in the presence of:

J G RICKARDSWitness

JEANETTE GERTRUDERICKARDSName

THE COMMON SEAL ofCITY LINK EXTENSION PTYLTD was affixed by the authority ofthe Board of Directors in the presenceof:

G R PHILLIPS(Signature of Secretary/Director)

GEOFFREY RAYMOND PHILLIPS(Name of Secretary/Director in Full)

LS

K EDWARDS(Signature of Director)

KIMBERLEY EDWARDS(Name of Director in Full)

——

ROBERT R C MACLELLAN

L\315785296.1L\326396548.18 375

EXECUTED as a deed.


Act No. 107/1995

If the event has had orwill have a MaterialAdverse Effect theparties must negotiateto achieve the outcomein Column 4, havingregard to all the"remedial tools" inclause 2.10(c)

SAVE THAT

Any requirement on theState to providefinancial contributionshall be considered as ameasure of last resortand apply only to theextent the othermethods of redresscannot reasonably beused so as to achievethe outcome prescribedin column 4

Restore the ability ofthe Company and theTrustee to repayProject Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevantevent;clxxviv

ANDRestore the ability ofEquity Investors to achieve the Equity Returnthe Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedule set out in Schedule 5B to IFA to that which wouldhave applied but forthe relevant event.

AND

Restore the ability of Original Equity Investors to achieve the Equity Return which would have applied but for the relevant event

AND

Restore the ability of Extension Equity Investors to achieve the Extension Equity Return which would have applied but for the relevant event

Column 2Material Adverse

Effect

Column 3Negotiations

2. The existence ofany pollution orcontamination onESEP Land or any

It must be agreed ordetermined underclause 2.9 that theevent has had or

If the event has had orwill have a MaterialAdverse Effect theparties must negotiate

Restore the ability ofthe Company and theTrustee to repayProject Debt in

Column 4Outcome

APPENDIX

CLAUSE 2.9

Column 1Event

1. An Act ofPrevention

L\315785296.1L\326396548.18 376

It must be agreed ordetermined underclause 2.9 that theevent has had orwill have aMaterial AdverseEffect.


Act No. 107/1995

to achieve the outcomein column 4, havingregard to all the"remedial tools" inclause 2.10(c)

SAVE THAT

Any requirement on theState to providefinancial contributionshall be considered as ameasure of last resortand apply only to theextent the othermethods of redresscannot reasonably beused so as to achievethe outcome prescribedin column 4

accordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevanteventclxxvii

AND

Restore the ability ofEquity Investors to achieve the Equity Returnthe Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedule set out in Schedule 5B to IFA to that which wouldhave applied but forthe relevant event

AND


AND



Column 4Outcome

3. (a) The alteration of any part of the Existing Traffic Environment;[Not used]

(b) A failure toprovide supportrequired undersub-paragraph2.4(a)(i) which istreated as an event

It must be agreed ordetermined underclause 2.9 that theevent has had orwill have aMaterial AdverseEffect.

Subject, however,in relation to theevent described initem 3(a)e) only of

If the event has had orwill have a MaterialAdverse Effect theparties must negotiateto achieve the outcomein Column 4, havingregard to all the"remedial tools" inclause 2.10(c)

SAVE THAT

Any requirement on the

Restore the ability ofthe Company and theTrustee to repayProject Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevantevent subject however, in relation

Column 1Event


Effect

other land to whichClepco has accessunder clause 4.2 or8.5 in relation towhich the State isrequired to providean indemnity underclause 12.7

L\315785296.1L\326396548.18 377

will have aMaterial AdverseEffect


Act No. 107/1995


Column 4Outcome

Column 1Event


Effect

(iv) has a detrimental effect by reason of the construction of new roads (other than the City Link) or

under item 3 of theAppendix;

(c) The doing of anyof the acts or thingsto which clause2.4(b) applies, which:

(i) evidences afailure by the State toaccord to theExhibition StreetExtension its status asa part of the roadnetwork for themovement of trafficto and aroundMelbourne;

(ii) interferes with the flow of traffic on roads (other than the City Link) reasonably required by the public for access to or from the Exhibition Street Extension (including as a result of a reduced commitment to, or resources available for, maintenance and repair of such roads relative to other comparable Melbourne roads);[Not used];

(iii) has a detrimental effect by reason of the connection of a road to the Exhibition Street Extension; or[Not used]; or

the Appendix, toclauses 2.5 and 2.12(e) of this Deedthe proviso that the assessment of whether there has been or will be a Material Adverse Effect will not consider revenue loss other than revenue loss:(a) resulting from the impacts of traffic disruption caused by the construction of the relevant connection or change; or

(b) attributable to a connection or change to the Exhibition Street Extension that results in a long term:

(i) physical change to the Exhibition Street Extension;

(ii) impact on the ability of Clepco to keep the Exhibition Street Extension open for the safe, efficient and continuous passage of vehicles; or

(iii) impact on the maximum posted speed applicable in steady state operation for the Exhibition Street Extension.

State to provideadditional financialcontribution shall beconsidered as a measureof last resort and applyonly to the extent theother methods ofredress cannotreasonably be used soas to achieve theoutcome prescribed incolumn 4

SUBJECT HOWEVER in relation to the event described in item 3(a) of this Appendix, to clause 2.5 of this Deed

L\315785296.1L\326396548.18 378

to the event described in item 3(a) of this Appendix, to clauses 2.5 and 2.12(c) of this Deed.clxxviclxviii

AND

Restore the ability ofEquity Investors to achieve the Equity Returnthe Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedules set out in Schedule 5B to the IFA to that whichwould have been applied but for therelevant event, subject however in relation to the

AND

Restore the ability of Original Equity Investors to achieve the Equity Returnwhich would have applied but for the relevant eventdescribed in Item 3(a) to clauses 2.5 and 2.12(c) of this Deed

AND



Act No. 107/1995

public transport routes or the alteration of existing or new roads (other than the City Link) or public transport routes, and which does not result from a breach or failure by Clepco, the Company, the Trustee or any contractor to any of them[Not used];

(d) Changes intransport policywhich:

(i) specificallydiscriminates againsttollways (includingthe implementation offree or near-freepublic transportacross themetropolitan publictransport system, butexcluding allconcessional travel)but not includingpolicies arising fromcompetitive practicesinitiated by publictransportmanagement); or

(ii) are inconsistentwith overallobjectives orintentions of theparties as describedin clause 2.1, taken asa whole, providedhowever that this isnot to be taken as anassurance that Clepcowill achieve itsintentions referred toin clause 2.1(b).

By way of example, arestriction on parkingdirected to limitingaccess in the CentralActivities District(especially if the


Column 4Outcome

Column 1Event

L\315785296.1L\326396548.18 379


Effect


Act No. 107/1995

restriction only leadsto a decrease intraffic growth) wouldnot usually beinconsistent with theoverall objectives ofclause 2.1 but theimposition of parkingrestrictions calculatedsubstantially toreduce the free accessof traffic to keypoints around theCentral ActivitiesDistrict wouldusually beinconsistent withthose objectives.

(e) A change orconnection beingeffected orimplemented underparagraph 2.4(e).

4. (a) Change in ornew State Law;

(b) change in, ornew, StateGovernment authorityrequirement;

(c) change inapplication orinterpretation ofexisting State Laws;

(d) changes in, ormatters relating to,State policy ordiscretion, andcertain other matters,as specified below,which:

It must be agreed ordetermined underclause 2.9 that theevent has had orwill have aMaterial AdverseEffect

If the event has had orwill have a MaterialAdverse Effect theparties must negotiateto achieve the outcomein column 4, havingregard to all the"remedial tools" inclause 2.10(c)

Any requirement on theState to provideadditional financialcontribution shall beconsidered as a measureof last resort and applyonly to the extent theother methods ofredress cannotreasonably be used soas to achieve theoutcome prescribed incolumn 4

Restore the ability ofthe Company and theTrustee to repayProject Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevanteventclxixvii

AND

Restore the ability ofthe Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedules set out in Schedule 5B to the IFA to that which would have been applied but for the relevant event

AND

Restore the ability of


Column 4Outcome

Column 1Event

L\315785296.1L\326396548.18 380


Effect


Act No. 107/1995


(i) in the context ofparagraphs (a), (b)and (c) has a specificand demonstrableeffect on the ESEPProject (whether ornot it relatesspecifically to, or isdirected at, the ESEPProject) includingroad Taxes, transportTaxes, carbon Taxes,fuel Taxes,environmental Taxesor new Taxes whichdirectly affect theESEP Project but notincluding a changerelating to Taxes(such as income,payroll and sales tax)which affectsbusiness generallyand which wouldhave affected Clepco,the Company, theTrustee or EquityInvestors (asapplicable)irrespective of thesingle purpose natureof the Project

A (a reference to taxincludes imposts,duties, excise or otherform of Statecollected revenue); or

(ii) in the context of

Column 4Outcome

Column 1Event

the Original EquityInvestors to achievethe Equity Return which would have applied but for the relevant event

AND

Restore the ability of Extension Equity Investors to achieve the Extension EquityReturn which wouldhave applied but forthe relevant event

L\315785296.1L\326396548.18 381


Effect


Act No. 107/1995


Column 4Outcome

(C) anything towhich paragraph2.4(b) applies;

(D) the alteration of any part of the Existing Traffic Environment;[Not used]

(E) a failure toprovide supportrequired undersub-paragraph2.4(a)(i) or anythingwhich would havebeen such a failurebut forsub-paragraphs2.4(a)(i)(E), (F) and(G); or

(F) any change intransport policy.

Changes and mattersto which paragraph(d) applies are:

(1) changes in policyof the Stateconcerningenforcement ofVictorian Law inforce at the date ofthis Deed relating tothe display of vehiclelicence plates;

(2) State policyconcerningenforcement of, orprosecutorial

Column 1Event


Effectparagraphs (a), (b),(c) and (d) do notinclude:

(A) an act to whichitem 7 of theAppendix applies;

(B) anything inrelation to which theState bears the riskunder sub-paragraph12.8(b)(ii);

L\315785296.1L\326396548.18 382


Act No. 107/1995

discretion applicableto, offences underprovisions enactedconsequent upon theProject Legislationand which relate toevasion of tollpayments, beingdifferent (in nature orextent) from thatconcerning orapplicable to offencesbased on trafficsurveillance devices,

(In this context, theState excludes anyGovernmentalAgency vested withdiscretion to enforce,or powers to issue,guidelines as to theexercise ofprosecutorialdiscretion insofar asthe exercise of thosediscretions andpowers aresubstantially freefrom interferencefrom the Governmentof the day),

(3) The number ofoffences to whichparagraph (2) appliesaffecting State policyor the discretionreferred to in thatparagraph,

(4) State policyconcerning theresourcing of theVictorianGovernment Agencyresponsible for theenforcement ofpenalties imposed inconnection with thefailure to pay tolls onthe Exhibition StreetExtension resulting inthat Agency beingless able to fulfil thatresponsibility relative


Column 4Outcome

Column 1Event

L\315785296.1L\326396548.18 383


Effect


Act No. 107/1995


Column 4Outcome

5. (a) Change in, ornew, CommonwealthLaw;

(b) change in, or newCommonwealthGovernment authorityrequirement; or

(c) change inapplication orinterpretation ofexistingCommonwealthLaws,

which has a specificand demonstrableeffect on the ESEPProject (whether ornot it relatesspecifically to, or isdirected at, the ESEPProject) includingroad Taxes, transportTaxes, carbon Taxes,fuel Taxes,environmental Taxesor new Taxes whichdirectly affect theESEP Project but notincluding:

(i) a change relatingto Taxes (such asincome, payroll andsales tax) whichaffects businessgenerally and whichwould have affectedClepco, theCompany, the Trusteeor Equity Investors


If the event has had orwill have a MaterialAdverse Effect theparties must negotiateto achieve the outcomein column 4, havingregard to all the"remedial tools" inclause 2.10(d)

SAVE THAT for thepurpose only ofachieving the outcomedescribed in column 4in relation to ProjectDebt the State shallnegotiate in good faithin an endeavour toagree whether there aremethods of redressavailable to the Statewhich it would beappropriate to add tothe "remedial tools" inclause 2.10(d). (It isacknowledged that itwould not beappropriate to addmethods of redressinvolving any Statefinancial contributionor the enactment of orchange to VictorianLaw). The State shallonly be obliged to sonegotiate, however, if:

(a) in the context of aparticular eventdescribed in column 1;

(b) the Agent requeststhat it do so in the

The Company andthe Trustee are tohave an ability torepay Project Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA substantiallysimilar to that whichwould have appliedbut for the relevanteventclxxviii

AND

Restore the ability of the Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedules set out in Schedule 5B to IFA to that which would have applied but for the relevant event

AND

restore the ability ofOriginal EquityInvestors to achievean Equity Returnbeing the lower of:

(a) the Equity Returnwhich would haveapplied but for therelevant event; and

(b) the Base CaseEquity Return.

AND

Column 1Event


Effectto the ability it wouldhave had were theresources madeavailable to it by theState equivalent tothose made availableby the State tocorrespondingAgencies.

L\315785296.1L\326396548.18 384


Act No. 107/1995

restore the ability of Extension Equity Investors to achieve an Extension Equity Return being the lower of:

(a) the Extension Equity Return which would have applied but for the relevant event; and

(b) the Extension Base Case Equity Return.

Column 4Outcome

Column 1Event

(A reference to taxincludes imposts,duties, excise or otherform ofCommonwealthcollected revenue).

CityLink Original Concession Period, netof expenses payable inthat period in respect ofoperation, maintenancerepair of the ExhibitionStreet Extension andthe City Link. In thiscontext, such revenueincludes non-operatingrevenue (such asinterest or fees derivedon any deposit or termaccounts) and suchexpenses exclude onesthe liability for whichwas incurred either inbreach of an obligationowed to the State underthe ESEP ProjectDocuments or the CityLink ProjectDocuments or otherthan one arms’ lengthterms.

Revenue receivable andexpenses payable shallbe assessed byreference to the positionas changed (or ascapable of beingchanged) by adoptionof the methods ofredress outlined inclause 2.10(d). Thediscount rate used shallbe the weighted averagecost of Project Debt (as,


Effect(as applicable)(irrespective of thesingle purpose natureof the Project);

(ii) anything inrelation to which theState bears the riskunder sub-paragraph12.8(b)(ii)


L\315785296.1L\326396548.18 385

context of that event;

(c) the amount of theProject Debt at therelevant time exceedsthe net present value ofall revenue receivablein relation to the CityLink Project and theESEP Project over thebalance of the


Act No. 107/1995

or operation of TollRoad or motor vehicleuse; or

(ii) which relates toTaxes on Toll Road useor carbon taxes orenvironmentalrequirements in relationto motor vehicle use,roads, Toll Roads or theconstruction oroperation of TollRoads.

Column 4Outcome

at any particular time,set out in column 5 ofschedule 5 to IFA withrespect to that time);andclxxix

(d) the event describedin column 1 isconstituted by a change,or a new Law orrequirement:

(i) which effectivelydiscriminates(including by way oftaxation), against theconstruction

6. Industrial actiondirected at the ESEPProject where it canbe reasonablydemonstrated by oron behalf of Clepcothat the industrialaction:

(a) results from anact or omission of theState or any VictorianGovernment Agencydirectly in relation tothe ESEP Project; or

(b) results from or ispart of an organisedcampaign inopposition to theimplementation of theESEP Project or anypart thereof or inopposition to theimplementation of



SAVE THAT

Any requirement on theState to provideadditional financialcontribution shall beconsidered as a measureof last resort and applyonly to the extent theother methods ofredress cannotreasonably be used soas to achieve theoutcome prescribed incolumn 4.

Restore the ability ofthe Company and theTrustee to repayProject Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevanteventclxxxii

AND

Restore the ability ofthe Company and the Trustee to repay WGT Project Debt in accordance with the amortisation schedules set out in Schedule 5B to IFA to that which would have applied but for the relevant event

Column 1Event


Effect


L\315785296.1L\326396548.18 386


Act No. 107/1995

7. (a) Any claim orapplication beingmade or any actionbeing taken by anyCommonwealth orState Minister orGovernment Agencyafter Delivery on thebasis that, or a courtor tribunal decidingthat:



Restore the ability ofthe Company and theTrustee to repayProject Debt inaccordance with theamortisation scheduleset out in schedule 5to IFA to that whichwould have appliedbut for the relevanteventclxxxiii

other State projects orState policies


any or all of theESEP Landor any otherland towhichClepco hasaccess underclause 4.2 or8.5constitutes asacred site orthat there isa sacred siteon the ESEPLand

there are"relics"within themeaning oftheArchaeological and

SAVE THAT

Any requirement on theState to provide afinancial contributionshall be considered as ameasure of last resortand apply only to theextent the othermethods of redresscannot reasonably beused so as to achievethe outcome prescribedin column 4.


AND

Restore the ability ofOriginal EquityInvestors to achievean Equity Returnbeing the lower of:


Column 4Outcome

AND

Restore the ability of Original EquityInvestors to achievethe Equity Return which would have applied but for the relevant event

AND

Restore the ability of Extension Equity Investors to achieve the Extension EquityReturn which wouldhave applied but forthe relevant event

Column 1Event

L\315785296.1L\326396548.18 387


Effect


Act No. 107/1995

Column 1Event


Effect

clause 4.2 or 8.5or that any act in

AboriginalRelicsPreservationAct 1972(Vic) on theESEP Landor any otherland towhichClepco hasaccess underclause 4.2 or8.5

there are"aboriginalplaces","significantAboriginalareas" or"aboriginalobjects"within themeaning oftheAboriginaland TorresStraitIslanderHeritageProtectionAct 1984(Cth) on theESEP Landor any otherland towhichClepco hasaccess underclause 4.2 or8.5

any form ofnative titlesubsists orpreviouslysubsisted inthe ESEPLand or anyother land towhichClepco hasaccess under


Column 4Outcome

L\315785296.1L\326396548.18 388


AND

Restore the ability of Extension Equity Investors to achieve an Extension Equity Return being the lower of:




Act No. 107/1995


Column 4Outcome

8. An event whichmanifests itself afterthe date of this Deedwhich would have

The event isdeemed underclause 11.3(d) tohave had a Material

If the event has had orwill have a MaterialAdverse Effect theparties must negotiate

Restore the ability ofthe Company and theTrustee to repayProject Debt and

Column 1Event


Effectrelation to theESEP Land orany other land towhich Clepcohas access underclause 4.2 or 8.5should or shouldnot be permittedor should bepermitted only oncertainconditions

(b) Any action beingtaken (or not taken)after Delivery by anyFederal GovernmentMinister orGovernment Agencypursuant to sections30(1) or 30(2) of theAustralian HeritageCommission Act1975 (Cth) to protecta site on the Registerof the NationalEstate, which islocated on the ESEPLand or any otherland to which Clepcohas access underclause 4.2 or 8.5

(c) Any action beingtaken after Deliveryunder the HistoricBuildings Act 1981(Vic) which prevents,restricts or delaysClepco fromperforming its dutiesunder this Deed orwhich protects anybuilding structure orsite which is locatedon the ESEP Land orany other land towhich Clepco hasaccess under clause4.2 or 8.5

L\315785296.1L\326396548.18 389


Act No. 107/1995

to achieve the outcomein column 4, havingregard to all the"remedial tools" inclause 2.10(d)

WGT Project Debt within the relevant Payback Period tothat which wouldhave applied but forthe relevant event and

AND

Restore the ability ofthe Original EquityInvestors to achievean Equity Returnbeing the lower of:



AND





Column 4Outcome

9. (a) Force MajeureEvent whichmanifests itself afterthe date of this Deed

(b) an event whichcauses damage to aFreeway (other thanthe City Link) orPrincipal TrafficRoute as described insub-paragraph2.4(a)(iii)(B), whichis reasonably requiredfor access to or fromthe Exhibition StreetExtension and which,


If the event has had orwill have a MaterialAdverse Effect theparties must negotiateto achieve the outcomein column 4 havingregard to all the"remedial tools" inclause 2.10(d)

Restore the ability ofthe Company and theTrustee to repayProject Debt and WGT Project Debt within the relevant Payback Period tothat which wouldhave applied but forthe relevant event and

AND

Restore the ability ofOriginal EquityInvestors to achievean Equity Return

Column 1Event


Effectbeen a Force MajeureEvent but for the factthat the risk of it wasreasonably capable ofadequate insurance inthe commercialinsurance market onreasonable terms butinsurance proceedshave been applied bythe Lenders inaccordance with theMaster Security Deedto reduce debt and arenot available underclause 11 torepair/reinstate theExhibition StreetExtension

L\315785296.1L\326396548.18 390

Adverse Effect andthe parties agree tonegotiate in goodfaith


Act No. 107/1995

10. A combination of2 or more eventsdeemed undersub-paragraph2.9(c)(iii) to be anAppendix Event

In relation to each Lessthan Material Item andeach Appendix Eventforming part of therelevant combination,the parties mustnegotiate to achieve theoutcome specified inColumn 4 havingregard to all theremedial toolsapplicable to thecategory of AppendixEvent which applies tothe particular item orevent, considered as ifthat item or event wasthe only one underconsideration.

In relation to eachLess than MaterialItem and eachAppendix Eventforming part of therelevant combination,the outcome is theone applicable to thecategory of AppendixEvent which appliesto the particular itemor event, consideredas if that item orevent was the onlyone underconsideration.

if it had damaged theExhibition StreetExtension, wouldhave caused Clepcoto be unable toperform any of itsobligations to theState under the ESEPProject Documentsand would have beencategorised as a ForceMajeure Event.


In considering eachitem, the redress foreach item shall beconsidered in thefollowing order:

Item 5 events (if any)will be consideredbefore other events (if

Column 4Outcome

being the lower of:



AND




Column 1Event

L\315785296.1L\326396548.18 391


Effect


Act No. 107/1995

any);

Items 8 and 9 events,(if any) are to beconsidered next andbefore the followingevents (if any):

Item 7 events, (if any)are to be considerednext and before thefollowing events (ifany); and

Items 1, 2, 3, 4 and 6events (if any) are tobe considered last.

11. The use of the Exhibition Street Extension by autonomous vehicles (including vehicles without drivers) is permitted but the Law is not amended to enable Clepco to levy and collect tolls and charges in respect of such use (including the ability of Clepco to request, and expect, service of an infringement notice in relation to the evasion of tolls and the enforcement of the offence the subject of that infringement notice), in the same manner as prior to use of the Exhibition Street Extension by autonomous vehicles.

During the CityLink Original Concession Period, it must be agreed or determined that the event has had or will have a Material Adverse Effect on the projected net operating cashflows in connection with the Exhibition Street Extension from the date of the occurrence of the event until the expiry of the Concession Period.

During the City Link Additional Concession Period, it must be agreed or determined that the event has had or will have an effect on the projected net operating cashflows in connection with the Exhibition Street Extension, from the date of the occurrence of the event until the expiry of the Concession Period,

The Company and the Trustee are to have an ability to repay Project Debt in accordance with the amortisation schedule set out in schedule 5 to IFA substantially similar to that which would have applied but for the relevant event

AND

Restore the ability of the Company and the Trustee to repay CTW Project Debt in accordance with the amortisation schedule set out in Schedule 5A to IFA to that which would have applied but for the relevant event

AND



Column 4Outcome

Column 1Event

L\315785296.1L\326396548.18 392


Effect


Act No. 107/1995

Column 1Event


Effect

12.

(a) The first set of minimum requirements for civil debt recovery arrangements approved by the Minister and published in the Government Gazette for the purpose of the Project Legislation is substantially different to the minimum requirements for civil debt recovery arrangements as set out in Exhibit YY to the City Link Concession Deed.

(b) Any subsequent minimum requirements for civil debt recovery arrangements approved by the Minister and published in the

In respect of Appendix Event 12(a), it must be agreed or determined that the event has had or will have an effect on the projected net operating cashflows in connection with the Exhibition Street Extension, from the date of the occurrence of the event until the expiry of the Concession Period, which exceeds $0.

In respect of Appendix Event 12(b), it must be agreed or determined that the event has had or will have an effect on the projected net operating cashflows in connection with the Exhibition Street Extension, from the date of the


AND


AND



the net present value of which exceeds $10 million (escalated by reference to CPI).

Column 4Outcome

L\315785296.1L\326396548.18 393

AND


AND

Restore the ability of Extension Equity Investors to achieve the Extension Equity Return which would have applied but for the relevant event.


Act No. 107/1995

AND

Restore the ability of Extension Equity Investors to achieve the Extension Equity Return which would have applied but for the relevant event.

Column 4Outcome

Column 1Event

13.An Accident Towing Licence Event occurs during the Additional Concession Period.

It must be agreed or determined that the event has had or will have an effect on the projected net operating cashflows in connection with the Exhibition Street Extension, from the date of the occurrence of the event until the expiry of the Concession Period, which exceeds $0.


AND


AND

Restore the ability of Original Equity Investors to achieve the Equity Return which would have applied but for the


Effect

Government Gazette for the purpose of the Project Legislation is substantially different to the minimum requirements for civil debt recovery arrangements in place immediately prior to the publication of the revised minimum requirements.

occurrence of the event until the expiry of the Concession Period, the net present value of which exceeds $10 million (escalated by reference to CPI).

L\315785296.1L\326396548.18 394



Act No. 107/1995

relevant event

AND



Effect

_______________


Column 4Outcome

L\315785296.1L\326396548.18 395

Column 1Event


Act No. 107/1995

L\315785296.1L\326396548.18 396

ENDNOTES

General Information1.This Agreement has been reprinted in accordance with section 18A of theMelbourne City Link Act 1995.


Act No. 107/1995

Special Gazette (No.67),12 May 1999, page 1

12 May 1999 12 May 1999#

Amending AgreementAgreement for theExhibition StreetExtension Project

Exhibition StreetExtension Third AmendingDeed

Special Gazette (No.180),1 December 2000, page 1

1 December 2000 1 December 2000#

Special Gazette (No.34),23 April 1998, page 1

22 April 1998

Deed of ManagedInvestments Act

Special Gazette (No.33),22 March 2001, page 1

21 March 2001 22 March 2001#

23 April 1999#

Gazette Reference

Exhibition StreetExtension FourthAmending Deed

Special Gazette (No.202),15 November 2001, page 1

15 November 2001 15 November 200

Date of Making

Exhibition StreetExtension First AmendingDeed

Exhibition StreetExtension Fifth AmendingDeed

Special Gazette (No.118),28 June 2002, page 1

28 June 2002 28 June 2002#


22 March 1999

Exhibition StreetExtension Sixth AmendingDeed

Special Gazette (No.191),28 October 2002, page 1

23 October 2002 28 October 2002#

29 March 1999#

+ The Date of Operation is the date the particular amending agreementbecame operative pursuant to section 15D of the Act. To determine the datethat the amendments to the Agreement for the Exhibition Street ExtensionProject prescribed by that particular amending agreement became operative,reference should be made to the terms of that amending agreement.

# Date of Operation was determined by the date of Gazette notice pursuant tosection 15D(5)(a).

The amending agreements can be inspected during office hours at theDepartment of Infrastructure, Level 3 Plaza, Nauru House, 80 Collins Street,Melbourne and at the Office of the Director, Melbourne City Link, Level 13,Nauru House, 80 Collins Street, Melbourne. Copies of the amendingagreements are also available for public inspection at the State Library (callnumber SEF 388.13099451 M48ME).

Date of Operation

Table of Amendments2.S. 15D: The Agreement for the Exhibition Street Extension Project has beenvaried by further agreements between the parties in accordance with section15D(1) of the Act.

L\315785296.1L\326396548.18 397

Exhibition StreetExtension SecondAmending Deed


Act No. 107/1995

29 March 1999*Gazette Reference Date of Making

Statement of VariationNo.2/1999: ESEP Deed ofGuarantee and Indemnity


29 March 1999 29 March 1999*

Date of Operation

S. 15D: The Agreement for the Exhibition Street Extension Project has beenvaried in accordance with the terms of the Extension Agreement and section15D(2) of the Act.

Statement of VariationNo.3/1999: ESEPContract Sum PaymentDirections Agreement

Government Gazette, 1April 1999, page 783

30 March 1999 1 April 1999*

Statement of Variation

* Date of Operation was determined by the date of Gazette notice pursuant tosection 15D(5)(a).

The Statements of Variation can be inspected during office hours at theDepartment of Infrastructure, Level 3 Plaza, Nauru House, 80 Collins Street,Melbourne and at the Office of the Director, Melbourne City Link, Level 13,Nauru House, 80 Collins Street, Melbourne. Copies of the Statements ofVariation are also available for public inspection at the State Library (callnumber above).

The provisions of an amending agreement or statement of variation may berelevant to the interpretation and operation of provisions of this consolidatedreprint. Therefore, when seeking to interpret provisions of this consolidatedreprint reference should always be made to the terms of the relevantamending agreement or statement of variation. Failure to do so may prevent acorrect or complete interpretation of the relevant provision.

Statement of VariationNo.1/1999: ESEP Deed ofCharge


L\315785296.1L\326396548.18 398

29 March 1999


Act No. 107/1995

L\315785296.1L\326396548.18 399

Explanatory Details3.

________________________I This version incorporates all amendments to the Agreement for the

Exhibition Street Extension Project up to and including the NinthAmending Deed.

ii "City Link Extension Pty Ltd ACN 082 058 615" amended by FirstAmending Deed Sch. cl. 1.

iii Clause 1.1 def. of "Addressee" inserted by Eighth Amending Deed SCh.Pty 1 cl. 1.1.

iv Clause 1.1 def. of "Annual Emergency Exercise" inserted by SeventhAmending Deed Sch. Pt 2 cl. 2.1.

v Clause 1.1 def. of "City Link Concession Deed" amended by FourthAmending Deed Sch. Pt 3 cl. 3.1.

vi Clause 1.1 def. of "Contract Sum Account" inserted by First AmendingDeed Sch. cl. 2.

vii Clause 1.1 def. of "Control" substituted by Fourth Amending Deed Sch. Pt1 cl. 1.1.

viii Clause 1.1 def. of "Emergency Management Plan" inserted by SeventhAmending Deed Sch. Pt 2 cl. 2.1.

ix Clause 1.1 def. of "Emergency Services" inserted by Seventh AmendingDeed Sch. Pt 2 cl. 2.1.

x Clause 1.1 def. of "Enforcement Agency" inserted by Eighth AmendingDeed Sch. Pt 1 cl. 1.1.

xi Clause 1.1 def. of "Entity" substituted by Fourth Amending Deed Sch. Pt 1cl. 1.2.

xii Clause 1.1 def. of "Equity Investor" amended by Fourth Amending DeedSch. Pt 1 cl. 1.3.

xiii Clause 1.1 def. of "ESEP Contract Sum Payment Directions Agreement"inserted by First Amending Deed Sch. cl. 4.

xiv Clause 1.1 def. of "ESEP Deed of Charge" amended by First AmendingDeed Sch. cl. 5.

xv Clause 1.1 def. of "ESEP Eighth Amending Deed" inserted by EighthAmending Deed Sch. Pt 1 cl. 1.1.

xvi Clause 1.1 def. of “ESEP Project Debt“ substituted by Fifth AmendingDeed Sch. Pt 1 cl. 1.1(a).

xvii Clause 1.1 def. of "ESEP Seventh Amending Deed" inserted by SeventhAmending Deed Sch. Pt 1 cl. 1.1.

xviii Clause 1.1 def. of "ESEP Third Amending Deed" inserted by ThirdAmending Deed Sch. Pt 1 cl. 1(b).

xix Clause 1.1 def. of "Excluded Interest" inserted by First Amending DeedSch. cl. 6.

xx Clause 1.1 def. of "Further Request For Payment" inserted by Eighth


Act No. 107/1995

L\315785296.1L\326396548.18 400

Amending Deed Sch. Pt 1 clause 1.1.xxi Clause 1.1 def. of "Good Practice Operator" inserted by Seventh

Amending Deed Sch. Pt 1 cl. 1.1.xxii Clause 1.1 def. of "GST" inserted by Third Amending Deed Sch. Pt 5 cl.

1(a).xxiii Clause 1.1 def. of "GST Act" inserted by Third Amending Deed Sch. Pt 5

cl. 1(a).xxiv Clause 1.1 def. of "GST law" inserted by Third Amending Deed Sch. Pt 5

cl. 1(a).xxv Clause 1.1 def. of "GST rate" inserted by Third Amending Deed Sch. Pt 5

cl. 1(a).xxvi Clause 1.1 def. of "IFA Ninth Amending Deed" inserted by Fifth

Amending Deed Sch. Pt 1 cl. 1.1(b).xxvii Clause 1.1 def. of "Incident Management Quality Plan" inserted by

Seventh Amending Deed Sch. Pt 1 cl. 1.1.xxviii Clause 1.1 def. of "Material Adverse Effect" amended by Fifth

Amending Deed Sch. Pt 1 cl. 1.1(c).xxix Clause 1.1 def. of "Material Adverse Effect" amended by Third Amending

Deed Sch. Pt 5 cl. 1(b).xxx Clause 1.1 def. of "NEVDIS" inserted by Eighth Amending Deed Sch. Pt

1 cl. 1.1.xxxi Clause 1.1 def. of "Operational Committee" inserted by Seventh

Amending Deed Sch. Pt 2 cl. 2.1.xxxii Clause 1.1 def. of "Operations Quality Plan" inserted by Seventh

Amending Deed Sch. Pt 1 cl. 1.1.xxxiii Clause 1.1 def. of "related body corporate" inserted by Fourth Amending

Deed Sch. Pt 1 cl. 1.4.xxxiv Clause 1.1 def. of "Request For Payment" inserted by Eighth Amending

Deed Sch. Pt 1 cl. 1.1.xxxv Clause 1.1 def. of "Spot Audit" inserted by Seventh Amending Deed Sch.

Pt 3 cl. 3.1.xxxvi Clause 1.1 def. of "Sunset Date" amended by First Amending Deed Sch.

cl. 7.xxxvii Clause 1.1 def. of "tax invoice" inserted by Third Amending Deed Sch.

Pt 5 cl. 1(a).xxxviii Clause 1.1 def. of "taxable supply" inserted by Third Amending Deed

Sch. Pt 5 cl. 1(a).xxxix Clause 1.1 def. of "Toll Administration Fee" inserted by Eighth

Amending Deed Sch. Pt 1 cl. 1.1.xl Clause 1.1 def. of "Toll Road" substituted by Third Amending Deed Sch. Pt

1 cl. 1(a).xli Clause 1.1 def. of "Tram Crossing Area" inserted by First Amending Deed

Sch. cl. 8.xlii Clause 1.1 def. of "Transurban Developments" inserted by Fourth

Amending Deed Sch. Pt 1 cl. 1.4.xliii Clause 1.1 def. of "Transurban Entity" inserted by Fourth Amending Deed

Sch. Pt 1 cl. 1.4.


Act No. 107/1995

L\315785296.1L\326396548.18 401

xliv Clause 1.1 def. of "Transurban Limited" inserted by Fourth Amending Deed Sch. Pt 1 cl. 1.4.

xlv Clause 1.1 def. of "Transurban Unit Trust" inserted by Fourth Amending Deed Sch. Pt 1 cl. 1.4.

xlvii Clause 1.1 def. of "Triennial Emergency Exercise" inserted by SeventhAmending Deed Sch. Pt 2 cl. 2.1.

xlviii Clause 1.2(q) amended by Fifth Amending Deed Sch. Pt 1 cl. 1.2(a).xliviii Clause 1.9(b) amended by First Amending Deed Sch. cl. 9.xlixv Clause 1.13(a) substituted by Fifth Amending Deed Sch. Pt 1 cl. 1.2(b).lxlvi Clause 1.13(b) substituted by Fifth Amending Deed Sch. Pt 1 cl. 1.2(c).lixlvii Clause 1.16 inserted by Fourth Amending Deed Sch. Pt 3 cl. 3.2.liixlviii Clause 1.16 amended by Seventh Amending Deed Sch. Pt 6 cl. 6.1.liiixlix Clause 1.16 "Tolls" inserted by Third Amending Deed Sch. Pt 1 cl. 2.livl Clause 1.16 "Tolls" amended by Seventh Amending Deed Sch. Pt 6 cl. 6.2.lvli Clause 1.18 inserted by Seventh Amending Deed Sch. Pt 6 cl. 6.2.lvii Clause 1.19 inserted by Eighth Amending Deed Sch. Pt 1 cl. 1.2.lviii Clause 1.20 inserted by Eighth Amending Deed Sch. Pt 1 cl. 1.2.lviiiliv Clause 2.1(b) amended by Fifth Amending Deed Sch. Pt 2 cl. 2.1(a).lixlv Clause 2.4(e)(iv)(A) amended by Third Amending Deed Sch. Pt 5 cl. 2.lx Clause 2.5(e) amended by Third Amending Deed Sch. Pt 5 cl. 3(a).lxi Clause 2.5(e) amended by Third Amending Deed Sch. Pt 5 cl. 3(b).lxii Clause 2.5(f) amended by Third Amending Deed Sch. Pt 5 cl. 4.lxiii Clause 2.5(h) amended Third Amending Deed Sch. Pt 5 cl. 5.lxviv Clause 2.6(a) amended by Third Amending Deed Sch. Pt 5 cl. 6.lxvii Clause 2.8(b) amended by Third Amending Deed Sch. Pt 1 cl. 3.lxviii Clause 2.8 amended by First Amending Deed Sch. cl. 10.lxviilix Clause 2.12(e)(iii) amended by Fifth Amending Deed Sch. Pt 2 cl.

2.1(b).lxviiilx Clause 2.12(f) amended by Fifth Amending Deed Sch. Pt 2 cl. 2.1(c).lxix Clause 2.14A inserted by Seventh Amending Deed Sch. Pt 4 cl. 4.1.lxxii Clause 3.4(f) substituted by First Amending Deed Sch. cl. 11.lxxiii Clause 3.4(g) inserted by First Amending Deed Sch. cl. 12.lxxiiv Clause 4.6(b) amended by First Amending Deed Sch. cl. 13.lxxiiilxv Clause 4.7(a) substituted by Third Amending Deed Sch. Pt 7 cl. 1.lxxviv Clause 4.7(f) substituted by Third Amending Deed Sch. Pt 7 cl. 2.lxxvii Clause 4.12(a) amended by First Amending Deed Sch. cl. 14.lxxviii Clause 4.13(a) amended by First Amending Deed Sch. cl. 15.lxixvii Clause 4.15 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxviiilxx Clause 4.16 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxix Clause 4.17 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxii Clause 4.18 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxiii Clause 4.19 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxiiv Clause 4.20 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxiiilxxv Clause 4.21 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxviv Clause 4.22 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxvii Clause 4.23 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxviii Clause 4.24 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.


Act No. 107/1995

L\315785296.1L\326396548.18 402

lxxixvii Clause 4.25 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxviii Clause 4.26 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.lxxxix Clause 4.27 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xclxxxii Clause 4.28 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xcilxxxiii Clause 4.29 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xciilxxxiv Clause 4.30 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xciiilxxxv Clause 4.31 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xcivlxxxvi Clause 4.32 inserted by Sixth Amending Deed Sch. Pt 1 cl. 1.1.xcvlxxxvii Clause 8.1(c) substituted by First Amending Deed Sch. cl. 16.xcvilxxxviii Clause 9.1(a)(i) amended by First Amending Deed Sch. cl. 17.xcviilxxxix Clause 9.1(b) substituted by Seventh Amending Deed Sch. Pt 1 cl.

1.2.xcviiixc Clause 9.1(c) inserted by Seventh Amending Deed Sch. Pt 1 cl. 1.2.xcix Clause 9.2(b) amended by First Amending Deed Sch. cl. 18.cxcii Clause 9.2(e) amended by Eighth Amending Deed Sch. Pt 2 cl. 2.2.cixciii Clause 9.2(e)(i) amended by Sixth Amending Deed Sch. Pt 3 cl. 3.2.ciixciv Clause 9.2(e) substituted by Third Amending Deed Sch. Pt 3 cl. 1.1.ciiixcv Clause 9.2(e) amended by Sixth Amending Deed Sch. Pt 3 cl. 3.1.civxcvi Clause 9.2(e) amended by Sixth Amending Deed Sch. Pt 3 cl. 3.4.cvxcvii Clause 9.2(e) amended by Seventh Amending Deed Sch. Pt 5 cl. 5.1.cvixcviii Clause 9.2(ea) inserted by Third Amending Deed Sch. Pt 3 cl. 1.cviixcix Clause 9.2(ec) inserted by Sixth Amending Deed Sch. Pt 3 cl. 3.5.cviiic Clause 9.2(ef) inserted by Sixth Amending Deed Sch. Pt 3 cl. 3.5.cixci Clause 9.2(ef) amended by Seventh Amending Deed Sch. Pt 5 cl. 5.3.cxcii Clause 9.2(h) amended by Third Amending Deed Sch. Pt 2(a).cxiii Clause 9.2(h)(i) substituted by Third Amending Deed Sch. Pt 2(b).cxiiv Clause 9.2(h)(ii) amended by Third Amending Deed Sch. Pt 2(c).cxiiicv Clause 9.2(h) amended by Third Amending Deed Sch. Pt 2(d).cxviv Clause 9.2(i) amended by Third Amending Deed Sch. Pt 3 cl. 2(a).cxvii Clause 9.2(i)(ii) amended by Third Amending Deed Sch. Pt 3 cl. 2(b).cxviii Clause 9.2(i)(iii) amended by Third Amending Deed Sch. Pt 3 cl. 2(c).cxviicix Clause 9.2(i)(iii)(A) amended by Third Amending Deed Sch. Pt 3 cl.

2(d).cxviiicx Clause 9.2(i)(iii)(B) substituted by Third Amending Deed Sch. Pt 3 cl.

2(e).cxix Clause 9.2(k) amended by Third Amending Deed Sch. Pt 1 cl. 4.cxxii Clause 9.2(k) amended by Sixth Amending Deed Sch. Pt 3 cl. 3.3.cxxiii Clause 9.2(k) amended by Seventh Amending Deed Sch. Pt 5 cl. 5.6.cxxiiv Clause 9.2(l) substituted by Third Amending Deed Sch. Pt 3 cl. 3.cxxiiicxv Clause 9.2(la) inserted by Third Amending Deed Sch. Pt 3 cl. 3.cxxviv Clause 9.2(m)(i) amended by Third Amending Deed Sch. Pt 1 cl. 5.cxxvii Clause 9.2(m)(i) amended by Third Amending Deed Sch. Pt 3 cl. 4(a).cxxviii Clause 9.2(m)(ii) amended by Third Amending Deed Sch. Pt 3 cl.

4(b)(i).cxixvii Clause 9.2(m)(ii)(A) amended by Third Amending Deed Sch. Pt 3 cl.

4(b)(ii).cxxviiicxx Clause 9.2(m)(ii)(B) amended by Third Amending Deed Sch. Pt 3 cl.


Act No. 107/1995

L\315785296.1L\326396548.18 403

4(b)(iii).cxxix Clause 9.2(m)(iii) inserted by Third Amending Deed Sch. Pt 3 cl. 4(c).cxxxii Clause 9.2(m)(iv) inserted by Third Amending Deed Sch. Pt 3 cl. 4(c).cxxxiii Clause 9.2(n) substituted by Second Amending Deed Sch. cl. 1.cxxxiiv Clause 9.2(o) inserted by Third Amending Deed Sch. Pt 3 cl. 5.cxxxiiicxxv Clause 9.2(p) inserted by Third Amending Deed Sch. Pt 3 cl. 5.cxxxviv Clause 9.2(q) inserted by Third Amending Deed Sch. Pt 3 cl. 5.cxxxvii Clause 9.2(qa) inserted by Eighth Amending Deed Sch. Pt 5 cl. 5.1.cxxxviii Clause 9.2(r) inserted by Third Amending Deed Sch. Pt 6 cl. 1.cxxixvii Clause 9.2A(d)(iii) amended by Ninth Amending Deed Sch. Pt 1 cl. 1.1.cxxxviii Clause 9.2A(i) amended by Ninth Amending Deed Sch. Pt 2.cxxxix Clause 9.2A inserted by Eighth Amending Deed Sch. Pt 1 cl. 1.3.cxlcxxxii Clause 9.2A(l), 9.2A(m) and 9.2A(n) inserted by Eighth Amending

Deed Sch. Pt 3 cl. 3.1.cxlicxxxiii Clause 9.3 amended by Third Amending Deed Sch. Pt 1 cl. 6.cxlxxiiv Clause 9.6(e) amended by Third Amending Deed Sch. Pt 1 cl. 7.cxliiicxxxv Clause 9.12A inserted by Seventh Amending Deed Sch. Pt 3 cl. 3.2.cxlxxviv Clause 9.13A inserted by Seventh Amending Deed Sch. Pt 3 cl. 3.3.cxlvcxxxvii Clause 9.16 inserted by Seventh Amending Deed Sch. Pt 2 cl. 2.2.cxlxxviii Clause 12.8(e)(iii) amended by Third Amending Deed Sch. Pt 1 cl. 8.cxlvxxiix Clause 13.1(b) amended by Fifth Amending Deed Sch. Pt 2 cl. 2.2.cxlviiicxl Clause 13.7(c) amended by Third Amending Deed Sch. Pt 1 cl. 9.cxlix Clause 13.7(e) amended by Third Amending Deed Sch. Pt 1 Cl. 10.clcxlii Clause 14.3(e) inserted by First Amending Deed Sch. cl. 19.cxliii Clause 14.5(c) amended by Fourth Amending Deed Sch. Pt 1 cl. 1.5.cxliiv Clause 14.5 amended by Fifth Amending Deed Sch. Pt 2 cl. 2.3.cliiicxlv Clause 14.7 inserted by Fourth Amending Deed Sch. Pt 2.cxlviv Clause 19.1(c) amended by Sixth Amending Deed Sch. Pt 2 cl. 2.1.cxlvii Clause 19.1(c) amended by Seventh Amending Deed Sch. Pt 9.cxlviii Clause 19.1(c) amended by Ninth Amending Deed Sch. Pt 3.CXLVIIX Schedule 1 amended by Second Amending Deed Sch. cl. 2.CLVIIICL Schedule 1 substituted by Third Amending Deed Sch. Pt 4.CLIX Schedule 1 amended by Eighth Amending Deed Sch. Pt 4 cl. 4.1.clxii Schedule 1 cl. 1.1 def. of "Weekend" substituted by Sixth Amending Deed

Sch. Pt 4 cl. 4.1.clxiii Schedule 1 cl. 5.1(a) substituted by Sixth Amending Deed Sch. Pt 4 cl.

4.2.clxiiv Schedule 1 cl. 5.3(b)(i) amended by Sixth Amending Deed Sch. Pt 4 cl.

4.3.clxiiiclv Schedule 1 cl. 7(b)(ii)(A) amended by Sixth Amending Deed Sch. Pt 4

cl. 4.4.clxviv Schedule 1 cl. 8.1 amended by Eighth Amending Deed Sch. Pt 4 cl.

4.2(a).clxvii Schedule 1 cl. 8.1(a) amended by Eighth Amending Deed Sch. Pt 4 cl.

4.2(b) & (c).clxviii Schedule 1 cl. 8.1(b) amended by Eighth Amending Deed Sch. Pt 4 cl.

4.2(d).


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L\315785296.1L\326396548.18 404

clixvii Schedule 1 cl. 8.1(ba) inserted by Eighth Amending Deed Sch. Pt 4 cl.4.2(e).

clxviiiclx Schedule 1 cl. 8.1(c) amended by Eighth Amending Deed Sch. Pt 4 cl.4.2(f).

clxix Schedule 1 cl. 8.1(d) amended by Eighth Amending Deed Sch. Pt 4 cl.4.2(g).

clxxii Schedule 1 cl 8.8 inserted by Ninth Amending Deed Sch. Pt 1 cl. 1.2.CLXXIII Schedule 2 substituted by First Amending Deed Sch. cl. 20.CLXXIIV Schedule 3 substituted by First Amending Deed Sch. cl. 21.CLXXIIICLXV Schedule 6 inserted by Third Amending Deed Sch. Pt 6 cl. 2.clxxviv Appendix item 1 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxvii Appendix item 2 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxviii Appendix item 3 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxixvii Appendix item 4 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxviii Appendix item 5 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxix Appendix item 5 column 3 amended by Fifth Amending Deed Sch. Pt

3(b).clxxxii Appendix item 6 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxxi Appendix item 7 column 4 amended by Fifth Amending Deed Sch. Pt

3(a).clxxiii Appendix item 7 column 4 amended by Fifth Amending Deed Sch. Pt 3(a).


Annexure B - Exhibit A - Variation Principles

1L\329083845.8

Annexure B: new Exhibit A – Variation Principles

Exhibit A - Variation Principles

1. Definitions

Unless otherwise expressly defined, expressions used in this Exhibit have the meanings givento them in or for the purposes of this Deed:

Agreed Margins means the D&C Margin, the O&M Margin and the D&C Preliminaries.

Allowance means, subject to the terms of this Exhibit, the percentage allowances to whichClepco is entitled for the relevant component identified in Table 1 or Table 2 in section 4 (asthe case may be) depending on the applicable thresholds set out in column 2, 3 or 4 (as thecase may be) of the relevant table.

Applicable Discount Rate has the meaning given in section 9.1(a)(iii)B.

Base Costs means Design Base Costs, D&C Base Costs, O&M Base Costs, Bureau SystemCosts and other Costs, directly attributable to a Change Compensation Event or in the case ofBureau System Costs, as a consequence of the occurrence of a Change Compensation Event,but excluding:

(a) any Agreed Margins or other Margin;

(b) administrative and overhead costs reasonably and properly incurred by Clepco inadministering the Change Compensation Event; and

(c) any amount calculated in accordance with section 5.

Bureau System means each of the following:

(a) the Tolling Back Office; and

(b) the asset management system used by Clepco or the Operator from time to time.

Bureau System Costs means the actual costs properly and reasonably incurred or which willbe properly and reasonably incurred by any entity within the Transurban Group carrying outcapital works, non-capital works or activities in relation to a Bureau System as a consequenceof the occurrence of a Change Compensation Event, including warranty costs and lifecyclecosts, but for the avoidance of doubt, excluding costs that the relevant entity or entities (asapplicable) within the Transurban Group would otherwise have incurred irrespective of theoccurrence of the Change Compensation Event.

Change Compensation Event means each event or change described in the table in section2.

Costs means all direct capital, operating, access and other costs properly and reasonablyincurred or which will be properly and reasonably incurred by Clepco.

D&C Base Costs means the actual costs properly and reasonably incurred or which will beproperly and reasonably incurred by the Operator or other subcontractor carrying out theworks (as the case may be) and directly attributable to a Change Compensation Event,including any on site management and supervision costs that are properly and reasonablyincurred or which will be properly and reasonably incurred and directly attributable to a ChangeCompensation Event, excluding all Agreed Margins, other preliminaries and Design BaseCosts.

2L\329083845.8

D&C Margin means:

(a) the percentage for the “D&C Margin” that the Operator may charge in accordancewith Table 1 in section 4; or

(b) in circumstances where the Operator does not undertake the required works, thepercentage that the subcontractor carrying out the works may charge asdetermined through a competitive tender process in accordance with section 10,

to cover all off-site overheads and administrative, corporate and other like costs and profits ofthe Operator or other subcontractor (as applicable) carrying out the works, but excludes D&CPreliminaries and D&C Base Costs.

D&C Preliminaries means the percentage that the Operator may charge for “D&CPreliminaries” in accordance with Table 1 in section 4 or, in circumstances where the Operatordoes not undertake the required works, the percentage that the subcontractor carrying out theworks may charge as determined through a competitive tender process in accordance withsection 10, to cover all on-site overheads (including, without limitation, overheads for staffingand management resources, facilities management and running costs, safety equipment, smalltools, provision of additional bonding and training and social inclusion commitment costs) andother like costs.

Design Base Costs means the actual third party design fees properly and reasonablyincurred or which will be properly and reasonably incurred, including architects’, engineers’and other design consultants’ fees, and directly attributable to a Change Compensation Eventbut excluding all Agreed Margins other than the Margin of the relevant third party designconsultant.

Margin means an amount on account of off-site overheads and administrative, corporate andother like costs and profit.

O&M Base Costs means the actual costs properly and reasonably incurred or which will beproperly and reasonably incurred by the Operator or any other subcontractors (as the casemay be) carrying out non-capital works or activities and directly attributable to a ChangeCompensation Event including warranty costs, lifecycle costs and access costs, but excludingthe O&M Margin.

O&M Margin means the percentage that the Operator or any other subcontractor may chargein accordance with Table 2 in section 4, to cover all off-site and on-site overheads andadministrative, corporate and other like costs and profits of the Operator or that othersubcontractor.

Projected Revenue means, at any time, the projected revenue to be derived by Clepco inconnection with the Exhibition Street Extension from that time until the Final Expiry Date. Forthe avoidance of doubt, the projected revenue is not required to be determined by reference tothe Financial Model.

Savings means the amount of any costs, including any Agreed Margins or other Margin,avoided or otherwise reduced in accordance with this Exhibit arising in connection with aChange Compensation Event.

Tolling Back Office has the meaning given to it in the City Link Concession Deed.

6L\329083845.8

(b) The amounts referred to in this section 5 will be calculated using a discount rate inrespect of Projected Revenue equal to the Applicable Discount Rate.

6. Compensation for positive revenue impact

(a) In respect of a Variation that has or will result in an increase in Projected Revenueover the Concession Period, the State will be entitled to payment of an amountequal to 50% of:

(i) the Projected Revenue immediately after the State issued the VariationOrder; minus

(ii) the Projected Revenue immediately before the State issued the VariationOrder.

(b) The amounts referred to in this section 6 will be calculated using a discount rate inrespect of Projected Revenue equal to the Applicable Discount Rate.

7. Not Used

8. Payment for Variation Quotes

If clause 7.6(g) of this Deed applies, the State must pay to Clepco the third party costscalculated in accordance with this Exhibit up to the amount quoted by Clepco in accordancewith clause 7.6(g)(ii) of this Deed for the preparation of the Variation Quote:

(a) (no State Variation Order): if the State does not issue a Variation Order, within 20Business Days of receiving an invoice from Clepco for such third party costsprovided that the relevant Variation Quote has been prepared and submitted inaccordance with this Deed; or

(b) (State Variation Order): if the State does issue a Variation Order, as part of theamount payable by the State for the Variation (including taking into account anySavings).

9. General

9.1 General principles for calculating compensation

(a) Compensation in respect of a Change Compensation Event will be determined asfollows:

(i) (overriding considerations): the overriding considerations will be that:

A. the State is receiving value for money; and

B. the compensation amount is fair and reasonable and iscalculated in a manner that is transparent;

(ii) (timing of payments): all payments made in accordance with thisExhibit will be made in accordance with section 9.2;

(iii) (time value of money):

A. appropriate regard must be given to the time value of moneyand timing of cash flows; and

7L\329083845.8

B. in respect of the Change Compensation Events listed insection 2, all cash flows must be discounted or inflated toreflect when they occur (if applicable) using, unless otherwisespecified, a project discount rate equal to the pre-tax, pre-finance nominal discount rate agreed by the parties at thetime of determining the compensation in respect of a ChangeCompensation Event:

1) [not used]; and

2) having regard to the relevant project cash flows forthe Exhibition Street Extension and theadjustments made to the equity cash flows for theExhibition Street Extension in the Base CaseFinancial Model,

In determining the pre-tax, pre-finance nominal discount rate(Applicable Discount Rate), the parties:

3) will have regard to the extent of the nature andimpact of the Change Compensation Event on theExhibition Street Extension undertaken by Clepcoup to the relevant time; and

4) will not have regard to prevailing market discountrates.

If the parties are unable to agree the relevant discount rate inaccordance with this section 9.1(a)(iii)B:

5) prior to the State issuing a Variation Order inaccordance with clause 7.6 of this Deed;

6) within 20 Business Days after receipt of aStreamlined Variation Proposal in accordance withclause 7.6A of this Deed; or

7) within 20 Business Days of the State electing torelieve Clepco from any obligation to undertakeany of the Handover Services,

(as applicable) or such longer period as agreed by the parties,either party may refer the matter for resolution in accordancewith Article 16 of this Deed;

(iv) (open book basis):

A. Clepco must:

1) provide all information referred to in this Exhibit onan open book basis, in accordance with thissection 9.1(a)(iv)B;

2) if required by the State, make available theappropriate personnel to explain the basis onwhich a particular calculation has been made; and

3) allow the State to review and undertakereasonable audits to enable it to verify compliance

8L\329083845.8

with this section 9.1(a)(iv) in respect of theinformation referred to in section 9.1(a)(iv)A.1),

in order to enable the State to make an accurate assessment of actualCosts and Savings in accordance with this Exhibit; and

B. "open book basis" will include Clepco providing a breakdownof the calculation of all relevant preliminaries, labour,equipment, materials, subcontract, finance and other costsand Margins of Clepco in a clear and transparent manner andother information reasonably requested by the State includingreasonably available source documents required to verifysuch calculation;

(v) (no double counting): no amounts will be double counted; and

(vi) (margins): except as expressly provided for in section 4, the State willnot pay or otherwise compensate Clepco for any Margin (or loss ofMargin) in respect of a Change Compensation Event.

9.2 Form and timing of compensation

(a) (Form of compensation): If a Change Compensation Event results in an amountowing from the State to Clepco, the State may elect to:

(i) pay such amount in accordance with this section 9.2; or

(ii) require that the parties negotiate in good faith an alternative form ofredress, which may include:

A. varying the ESEP Project Documents;

B. varying the Concession Period;

C. varying the Toll Calculation Schedule; or

D. taking such other action as the parties may agree,

provided that if the parties are unable to agree an alternative form ofredress within a reasonable period of time, having regard to Clepco'scashflow immediately after the Change Compensation Event, the Statewill, without limiting its rights under clause 7.6 of this Deed, pay therelevant amount owing in accordance with section 9.2(a)(i).

(b) (Payment of Compensation): If a Change Compensation Event results in anamount owing from:

(i) Clepco to the State:

A. subject to section 9.2(b)(i)B, such amount will be a debt dueand payable by Clepco to the State; and

B. to the extent that the amount that is due and payable to theState includes an amount calculated in accordance withsection 6 (being the State Amount), and Clepco is not in aposition to pay the State Amount and pay all other amounts(other than any equity distributions) due and payable by it,Clepco's obligation to pay the State Amount will be deferreduntil the first date thereafter on which Clepco is able to pay

9L\329083845.8

the State Amount and all other amounts (other than anyequity distributions);

(ii) the State to Clepco and:

A. the State has elected to pay the amount owing; and

B. the amount owing is not financed by Clepco in accordancewith section 9.2(c),

the State will pay such amount to Clepco:

C. subject to sections 9.2(b)(ii)D in accordance with the paymentarrangements set out in the Variation Order or as otherwiseagreed or determined between the parties (which couldinclude a lump sum payment, monthly payment in arrears, aseries of milestone payments (or a combination of thesemethods)) and, if applicable, section 9.2(d); and

D. Not Used; or

(iii) the State to Clepco that is financed by Clepco in accordance withsection 9.2(c), the State will pay such amount to Clepco by way of anagreed set of payments reflecting the amount and tenor of any financingcosts incurred.

(c) (Funding): Where the State requests Clepco to obtain funding for a ChangeCompensation Event, Clepco must use all reasonable endeavours to obtain suchfunding, including by:

(i) using any Savings resulting from other Change Compensation Eventswhich have resulted in amounts being available under the LendingDocuments;

(ii) arranging for additional funding under the Lending Documents and fromother sources (if permitted under the Lending Documents); and

(iii) arranging other funding obtained on commercial terms for Clepco by theState (without any obligation on the State to make any sucharrangements and only if permitted under the Lending Documents andon terms reasonably acceptable to Clepco).

Where Clepco, having used all reasonable endeavours, is:

(iv) unable to obtain funding that is on terms which are satisfactory to theState, the State will, without limiting its rights under this Deed, pay therelevant amounts in accordance with section 9.2(b); or

(v) able to obtain funding that is on terms which are satisfactory to the State,the parties must negotiate in good faith the treatment of such funding asESEP Project Debt, Project Debt and Project Securities under this Deedand/or the City Link Concession Deed. Clepco is not obliged to obtainany funding unless the treatment of the funding is agreed by the parties.

(d) (Lump Sum Payments): If:

(i) a Variation Order results in an amount owing from the State to Clepco;and

10L\329083845.8

(ii) the State’s payment to Clepco of an amount calculated in accordancewith this Exhibit will be a lump sum payment,

the State will pay such amount to Clepco when the following requirements havebeen satisfied:

(iii) if the State requires certification of any works required as a result of theVariation by a suitably qualified independent reviewer, upon suchcertification that the Variation has been completed in accordance withthe relevant Variation Order and this Deed; or

(iv) otherwise as a debt due and payable,

and within 60 days after receiving a valid Tax Invoice from Clepco for the amountcalculated in accordance with this Exhibit.

9.3 Variations and Streamlined Variation Proposals

(a) [Not used].

(b) (Process for Variations): The process for dealing with Variations, including theissue of Variation Requests, Variation Quotes, Variation Proposals and VariationOrders, is set out in clause 7.6 of this Deed.

(c) (Obligations for Variations): Subject to section 9.3(f), any Variation Request,Variation Quote, Variation Proposal or Variation Order issued must comply withsection 12 and the applicable requirements of clause 7.6 of this Deed.

(d) (Tender process in respect of a Variation): Without limiting the State's rightsunder this Deed (including where Clepco fails to submit a Variation Quote inaccordance with this Deed), where:

(i) Clepco has not submitted a Variation Quote as required by and inaccordance with clause 7.6 of this Deed; or

(ii) the State responds to a Variation Quote in accordance with clause7.6(k)(iv) of this Deed,

the State may request that Clepco carry out a tender process in respect of aVariation in accordance with section 10.

(e) (Undertake tender process): Upon receipt of a request under section 9.3(d),Clepco must carry out a tender process in accordance with section 10.

(f) (Variation arising from Streamlined Variation Proposal): In respect of anyVariation arising as a result of a Streamlined Variation Proposal:

(i) clause 7.6A of this Deed will apply;

(ii) any amounts claimed or payable in respect of a Variation as a result of aStreamlined Variation Proposal must be calculated in accordance withthis Exhibit; and

(iii) Clepco must promptly provide such information as is reasonablyrequested by the State to support the amount claimed to be payable forthe Variation as a result of a Streamlined Variation Proposal.

11L\329083845.8

10. Tender process

(a) (Conduct of the tender process): Subject to section 10(g), if Clepco is required tocarry out a tender process under clause 7.6(i) of this Deed, Clepco must:

(i) obtain three separate quotes (or such lesser number of quotes asdirected by the State) from experienced, independent and capablecontractors which are acceptable to the State (acting reasonably) tocarry out the work in respect of the relevant Change CompensationEvent; and

(ii) must conduct the tender process in accordance with the standard of aGood Practice Operator.

(b) (Selection): Clepco will be responsible for selecting a subcontractor from thisprocess in consultation with (and subject to the prior agreement of) the State.

(c) (Tender process material): Clepco must permit the State to review all materialsthat are submitted in the tender process and provide any other information that theState reasonably requires.

(d) (Selection criteria): Clepco must demonstrate, to the reasonable satisfaction ofthe State, that the subcontractor it intends to select is the best choice having regardto:

(i) the price quoted in the prevailing market conditions;

(ii) the experience and capability of that subcontractor in the context of therelevant Change Compensation Event; and

(iii) the ability of the subcontractor to carry out the work in respect of theChange Compensation Event in the manner required by this Deed.

The subcontractor must meet the requirements in respect of subcontractors set outin this Deed.

(e) (Effect of tender process): Subject to section 10(f), Clepco must, within 10Business Days of the outcome of the tender process, amend its Variation Quoteand submit it to the State.

(f) (State not satisfied): If, following the conduct of the tender process, the State isnot reasonably satisfied as to the matters described in section 10(d), or that thetender process has not been conducted in accordance with best industry practice, itmay:

(i) direct Clepco not to accept any tender;

(ii) otherwise instruct Clepco not to proceed with the work in respect of therelevant Change Compensation Event;

(iii) direct Clepco to conduct a further tender process, in accordance with thisExhibit, provided that where the direction relates to the State not beingreasonably satisfied as to the matters described in section 10(d), thereasonable, verifiable costs calculated in accordance with section9.1(a)(i) and 9.1(a)(iv) and directly attributable to:

A. the first tender process directed by the State pursuant tosection 10(f)(iii) will be the responsibility of Clepco; and

12L\329083845.8

B. any subsequent tender processes directed by the Statepursuant to section 10(f)(iii) will be the responsibility of theState; or

(iv) instruct Clepco to proceed with the work in respect of the relevantVariation, but on another basis under this Exhibit.

(g) (No tender): The State cannot require Clepco to conduct a tender process inaccordance with this section 10 in respect of:

(i) any proprietary software system; and

(ii) any other system, sub-system or item of technology which the partiesagree is part of an integrated end-to-end solution for operating,maintaining or tolling the Exhibition Street Extension (acting reasonablyand having regard to the risk that utilising a contractor procured throughtender could result in a loss of functionality of the relevant system, sub-system or item of technology).

11. Dispute resolution

(a) If Clepco refers a matter for resolution under clause 3.3AE(f) or 7.6(c) of this Deed:

(i) (Base Costs): the disputed Base Costs calculated in item C of section 4shall be the lower of:

A. the amount claimed by Clepco in accordance with this Exhibit;and

B. the amount determined in accordance with Article 16 of thisDeed;

(ii) (Savings): the disputed Savings calculated in item D of section 3 shallbe the higher of:


B. the amount determined in accordance with Article 16 of thisDeed;

(iii) (adverse revenue impact): the disputed adverse revenue calculated insection 5 shall be the lower of:


B. the amount determined in accordance with Article 16 of thisDeed; and

(iv) (positive revenue impact): the disputed positive revenue calculated insection 6 shall be the higher of:


B. the amount determined in accordance with Article 16 of thisDeed.

13L\329083845.8

(b) If the parties do not reach agreement on the appropriate form of redress undersection 9.2(a)(ii) within 20 Business Days of the acceptance by the State of aVariation Quote or Streamlined Variation Proposal, either party may refer the matterdirectly for resolution in accordance with Article 16 of this Deed. In making thedetermination, the expert or arbitrator must ensure, and the parties must requirethat, his or her determination as to any redress does not involve a redress otherthan those set out in section 9.2(a) without the parties' agreement.

12. Warranties

All Variation Quotes must:

(a) (Warranty): contain a warranty by Clepco that the Variation when implementedwill:

(i) enable the Exhibition Street Extension to meet, and continue to satisfythroughout the Concession Period, the requirements of this Deedincluding the ESEP O&M Requirements except to the extent that it isagreed or determined in accordance with the Variation Order; and

(ii) enable Clepco at all times to carry out the maintenance, operation andrepair of the Exhibition Street Extension in accordance with the ESEPO&M Requirements and to comply with the terms of this Deed, except tothe extent that it is agreed or determined in accordance with theVariation Order,

in each case, without limiting the warranties given by Clepco in other clauses of thisDeed, except to the extent that it is agreed or determined in accordance with theVariation Order; and

(b) (Bona fide): contain a warranty by Clepco that it is satisfied that the Claim thesubject of the Variation Quote is bona fide and the relief sought is an accuratereflection of Clepco entitlement under this Deed to the extent it is able to be knownat the time.

Exhibition Street Extension Deed Eighteenth Amending Deed

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