Attachment 13 Compensation Following Termination

Transcription

1 Attachment 13 Compensation Following Termination Attachment 13

2 PART A COMPENSATION PAYABLE FOLLOWING CONCESSIONAIRE TERMINATION EVENT 1. DEFINITIONS For the purposes of this Part A of Attachment 13, the following terms have the respective meanings set forth below: Concessionaire Default Amount means the amount calculated, during the Design/Build Period, in accordance with Section 2.1 of this Part A of Attachment 13 and, after the Design/Build Period, in accordance with Section 2.3 of this Part A of Attachment 13. New Concession and Lease Agreement means an agreement on substantially the same terms and conditions as the Agreement (including any agreements entered into pursuant to the Agreement as at the Termination Date). New Concessionaire means the Person who has entered into or who will enter into the New Concession and Lease Agreement with RTD. Project Implementation Costs means the total costs, expenses and fees that have been incurred by or on behalf of the Concessionaire in connection with the design, development, financing, construction, operation and maintenance of the Commuter Rail Network and the Rolling Stock, including funds drawn but not expended for the purpose of design, development, construction, operation and maintenance of the Commuter Rail Network and the Rolling Stock. Projected Rectification Costs means projected costs required to remedy any defective part of the Work, to rectify any breach of the Agreement by the Concessionaire, to modify or re-construct any part of the Work as necessary to accommodate and support any replacement equipment or technology that must be used or applied by RTD to complete the Commuter Rail Network to meet the Design, Construction and Rolling Stock Requirements, including any costs of re-tendering or design, in the event any equipment or technology specified in the Final Design Submittals is not available to be used by RTD following termination of the Agreement, and/or to bring the condition of the Commuter Rail Network to the standard it would have been in as of the Termination Date if the Concessionaire had complied with its obligations to carry out and complete the Work in accordance with the Agreement and to operate and maintain the Concessionaire-operated Components in accordance with the Agreement and the Project Schedule, the Relevant Proceeds (if any) released to RTD in accordance with Section 40.3 (Insurance Proceeds) of the Agreement. Re-letting Process means any process by which RTD requests proposals from parties interested in entering into a New Concession and Lease Agreement and evaluates the responses from those interested parties taking into account (where consistent with RTD's requirements) the interests of the Concessionaire and the Lenders and negotiates to enter into a New Concession and Lease Agreement with a New Concessionaire. Page 1 Attachment 13, Part A

3 Subcontractor Breakage Costs means Losses that have been or will be reasonably and properly incurred by the Concessionaire under a Project Agreement as a direct result of the termination of the Agreement (and which shall not include lost profit or lost opportunity), but only to the extent that: the Losses are incurred in connection with the and in respect of the provision of services or the completion of Work required to be provided or carried out, including: (i) (ii) (iii) any materials or goods ordered or Subcontracts placed that cannot be cancelled without such Losses being incurred; any expenditure incurred in anticipation of the provision of services or the completion of Work in the future; and the cost of demobilization including the cost of any relocation of the Equipment; the Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on reasonable commercial terms; and the Concessionaire and the relevant Project Contractor or Subcontractor have each used their Reasonable Efforts to mitigate the Losses. Suitable Substitute Contractor means a Person approved by RTD as: having the legal capacity, power and authority to become a party to and perform the obligations of the Concessionaire under the Agreement; being likely to have sufficient funds available to it or is otherwise likely to have the ability to raise funding to be able to pay the likely highest price offered for the right to enter into a New Concession and Lease Agreement; and employing, or presenting a staffing plan indicating the employment of, Persons having the appropriate qualifications, experience and technical competence and having the resources available to it (including committed financial resources and subcontracts) which are sufficient to enable it to perform the obligations of the Concessionaire under the Agreement. Page 2 Attachment 13, Part A

4 2. CALCULATION OF CONCESSIONAIRE DEFAULT AMOUNT Calculation of the Concessionaire Default Amount during the Design/Build Period 2.1 If the Agreement is terminated pursuant to Section 41.2 of the Agreement during the Design/Build Period, the amount payable by RTD under Section 42.1 (Compensation Following Concessionaire Termination Event) of the Agreement shall equal an amount not to exceed the aggregate amount of 100% of Lenders' Liabilities then owing equal to (calculated at the Termination Date, or such date as required under Section 42.4(g)(ii) of the Agreement, as applicable, and without double-counting): all Project Implementation Costs incurred by the Concessionaire until the Termination Date (excluding any prepayment costs and fees or make whole amounts or breakage costs calculated by reference to the Financial Model as at Financial Close) as verified by the Independent Engineer; any amount standing to the credit of any bank account held by or on behalf of the Concessionaire that has not been applied to the costs of performing the Concessionaire's obligations under the Agreement; the aggregate amount of Construction Payments made by RTD under the Agreement; (d) the Projected Rectification Costs as determined, by reference to the Termination Date, by an independent third party expert appointed jointly by the Parties within 90 days of the appointment by both Parties of such expert (provided that if the Parties fail to agree on the identity of such expert and fail to complete such appointment by the fifteenth Business Day following the Termination Date, either Party may request the Technical Panel to select and appoint such expert within 15 Business Days of such request) taking into account the condition of the Work at the Termination Date and taking into account the rights and obligations of the Concessionaire under the Agreement, assuming that the Agreement has not been terminated, which determination shall, except in the case of manifest error or fraud, be final and binding on the Parties un (i) challenged by either Party within 30 days of the date of determination by submission to the Technical Panel for resolution in accordance with the Dispute Resolution Procedure and thereafter and (ii) such challenge is finally concluded in favor of the challenging Party; (e) the reasonable and verifiable costs (including proper external professional costs) incurred by RTD (i) with respect to the expert determination referenced in clause (d) above, and (ii) in replacing the Concessionaire with a Suitable Substitute Contractor (including the costs incurred in carrying out any Re-letting Process). Page 3 Attachment 13, Part A

5 Drawings under the Concessionaire Completion Security 2.2 If the amount calculated in accordance with Section 2.1 is than zero, RTD shall be entitled to make a claim for payment under the Construction Security on the Termination Date for an amount equal to the amount by which the amount calculated in accordance with Section 2.1 is than zero (adjusted to be stated as the equivalent positive number). Calculation of the Concessionaire Default Amount after the Design/Build Period 2.3 If the Agreement is terminated pursuant to Section 41.2 of the Agreement after the Design/Build Period, the amount payable by RTD under Section 42.1 (Compensation Following Concessionaire Termination Event) of the Agreement shall be the greater of: an amount not to exceed the aggregate amount of Lenders' Liabilities then owing equal to (calculated at the Termination Date, or such date as required under Section 42.4(g)(ii) of the Agreement, as applicable, and without double-counting): (i) all Project Implementation Costs incurred by the Concessionaire until the Termination Date (excluding any prepayment costs and fees or make whole amounts or breakage costs calculated by reference to the Financial Model as at Financial Close) as verified by the Independent Engineer; (ii) the value of the accrued amortization of the Project Implementation Costs, determined by calculating, using a straight line amortization schedule, the total amount accrued through the Termination Date and in any event not to exceed the amount of Project Implementation Costs accrued amortization on the Termination Date as shown in the Financial Model; and 80% of the Lenders' Liabilities, in either case or, (i) the Projected Rectification Costs as determined, by reference to the Termination Date, by an independent third party expert appointed jointly by the Parties within 90 days of the appointment by both Parties of such expert (provided that if the Parties fail to agree on the identity of such expert and fail to complete such appointment by the fifteenth Business Day following the Termination Date, either Party may request the Technical Panel to select and appoint such expert within 15 Business Days of such request) taking into account the condition of the Work at the Termination Date and taking into account the rights and obligations of the Concessionaire under the Agreement, assuming that the Agreement has not been terminated, which determination shall, except in the case of manifest error or fraud, be final and binding on the Parties un (A) challenged by either Party within 30 days of the date of determination by submission to the Technical Panel for resolution in accordance with the Dispute Resolution Procedure and thereafter and (B) such challenge is finally concluded in favor of the challenging Party; Page 4 Attachment 13, Part A

6 (ii) the reasonable and verifiable costs (including proper external professional costs) incurred by RTD (A) with respect to the expert determination referenced in clause (i) above, and (B) in replacing the Concessionaire with a Suitable Substitute Contractor (including the costs incurred in carrying out any Re-letting Process). 3. RELEASE OF INFORMATION The Concessionaire hereby authorizes RTD to release any information that is reasonably required in connection with any Re-letting Process which would otherwise be subject to the restrictions in Section 55 (Confidentiality) of the Agreement. 4. DISPUTES Un otherwise agreed by the Parties, any Dispute as to the amount of the Project Implementation Costs of a technical nature or any other disputes of a technical nature relating to the amounts calculated under this Part A of Schedule 13 shall be determined by the Technical Panel and any other Dispute as to any other amount referred to in this Part A of Schedule 13 shall be referred to the Financial Panel in accordance with the Dispute Resolution Procedure. Page 5 Attachment 13, Part A

7 PART B COMPENSATION PAYABLE FOLLOWING RTD TERMINATION EVENT 1. DEFINITIONS For the purposes of this Part B of Attachment 13, the following terms have the respective meanings set forth below: Base Equity Component has the meaning given to it in the definition of Equity Market Value. Equity Market Value means: in the case of a termination in accordance with Sections 5.13 or 5.13(iii), an amount equal to the sum of (i) the amount of the drawn equity capital and payments in respect of any Shareholder Loans as of the Termination Date plus (ii) an annual rate of return of 8% (A) on fixed equity or Shareholder Loan commitments made at Financial Close in accordance with the Financial Model from the date of Financial Close until the earlier of the Termination Date or the date on which such equity and/or Shareholder Loans are contributed and (B) if any amount of such equity or Shareholder Loan is contributed prior to the Termination Date, on such amount from the date of its contribution until the Termination Date (the sum of (i) and (ii), the Base Equity Component) plus (iii) a rate of return equal to the Equity IRR on any unpaid amount of the Base Equity Component for the period from the Termination Date to the date on which RTD has paid the full amount of the sum of (i), (ii) and (iii); and in the case of a termination as a result of an RTD Termination Event, the net present value of the anticipated future nominal Distributions (post-tax on the part of the Concessionaire but pre-tax on the part of the Shareholders) in respect of drawn share capital and payments in respect of any Shareholder Loans as of the Termination Date determined by an independent third party expert appraiser that is nationally recognized for the conduct of valuation exercises within 90 days of the appointment by both Parties of such expert appraiser (provided that if the Parties fail to agree on the identity of such expert appraiser and fail to complete such appointment by the fifteenth Business Day following the Termination Date, either Party may request the Financial Panel to select and appoint such expert appraiser within 15 Business Days of such request), which determination shall, except in the case of manifest error or fraud, be final and binding on the Parties un (i) challenged by either Party within 30 days of the date of determination by submission to the Financial Panel for resolution in accordance with the Dispute Resolution Procedure and (ii) such challenge is finally determined by the Financial Panel in favor of the challenging Party. For purposes of the calculation of such net present value, the Parties, or the Financial Panel as the case may be, shall instruct the independent third party expert appraiser to utilize a discount rate that is based on both the performance of the and projects in the United States of America employing a similar approach to risk allocation (including credit risk), a similar payment mechanism (including the absence of any transfer of usage risk to the Concessionaire) and on the assumption that no RTD Termination Event has occurred and the shares in the Concessionaire are freely transferable and are being sold in the open market. Page 6 Attachment 13, Part B

8 RTD Default Amount has the meaning given to it in Section 2 of this Part B of Attachment 13. Subcontractor Breakage Costs means Losses that have been or will be reasonably and properly incurred by the Concessionaire under a Project Agreement as a direct result of the termination of the Agreement (and which shall not include lost profit or lost opportunity), but only to the extent that: the Losses are incurred in connection with the and in respect of the provision of services or the completion of Work required to be provided or carried out, including: (i) (ii) (iii) any materials or goods ordered or Subcontracts placed that cannot be cancelled without such Losses being incurred; any expenditure incurred in anticipation of the provision of services or the completion of Work in the future; and the cost of demobilization including the cost of any relocation of the Equipment; the Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on reasonable commercial terms; and the Concessionaire and the relevant Project Contractor or Subcontractor have each used their Reasonable Efforts to mitigate the Losses. 2. CALCULATION OF RTD DEFAULT AMOUNT If the Agreement is terminated pursuant to Sections 5.13, 5.13(iii) or 41.5 (Consequences of an RTD Termination Event), the amount payable by RTD under Section 42.2 (Compensation Following RTD Termination Event or Failure to Deliver Full Phase 1 Notice to Proceed) (the RTD Default Amount) shall equal the aggregate, calculated at the Termination Date or such date as required under Section 42.4(g)(i) of the Agreement, as applicable, of: (d) the Lenders' Liabilities as at that date; an amount equal to the Equity Market Value the documented costs (including professional fees) expended to conduct the independent third party expert appraisal described in the definition of Equity Market Value; any Subcontractor Breakage Costs; and any reasonable and verifiable costs and expenses of enforcement or protection or preservation of security properly and incurred by the Lenders from the Termination Date to the date of payment by RTD. Page 7 Attachment 13, Part B

9 3. CALCULATION OF LENDERS' LIABILITIES RTD will be entitled to rely on one or more certificates of officers of the Lenders or their agent(s) as conclusive evidence of the amount of the Lenders' Liabilities. The receipt of this amount by the Lenders or their agent(s) will discharge RTD's obligation to pay any element of compensation due to the Concessionaire that is equal to the Lenders' Liabilities. 4. DISPUTES Un otherwise agreed by the Parties, any Dispute of a technical nature that relates to the amounts calculated under Section 2 of this Part B of Attachment 13 shall be determined by the Technical Panel and any other Dispute as to any other amount referred to in this Part B of Attachment 13 shall be referred to the Financial Panel in accordance with the Dispute Resolution Procedure. Page 8 Attachment 13, Part B

10 PART C COMPENSATION PAYABLE FOLLOWING EXTENSIVE FORCE MAJEURE EVENT 1. DEFINITIONS For the purposes of this Part C of Attachment 13, the following terms have the respective meanings set forth below: FM Termination Amount has the meaning given to it in Section 2 of this Part C of Attachment 13. Project Implementation Costs means the total costs, expenses and fees that have been incurred by or on behalf of the Concessionaire in connection with the design, development, financing, construction, operation and maintenance of the Commuter Rail Network. Subcontractor Breakage Costs means Losses that have been or will be reasonably and properly incurred by the Concessionaire under a Project Agreement as a direct result of the termination of the Agreement (and which shall not include lost profit or lost opportunity), but only to the extent that: the Losses are incurred in connection with the and in respect of the provision of services or the completion of Work required to be provided or carried out, including: (i) (ii) (iii) any materials or goods ordered or Subcontracts placed that cannot be cancelled without such Losses being incurred; any expenditure incurred in anticipation of the provision of services or the completion of Work in the future; and the cost of demobilization including the cost of any relocation of the Equipment; the Losses are incurred under arrangements and/or agreements that are consistent with terms that have been entered into in the ordinary course of business and on reasonable commercial terms; and the Concessionaire and the relevant Project Contractor or Subcontractor have each used their Reasonable Efforts to mitigate the Losses. 2. CALCULATION OF FM TERMINATION AMOUNT If the Agreement is terminated pursuant to Section 39.8 (Extensive Force Majeure Event), the amount payable by RTD under Section 42.3 (Compensation Following Extended Force Majeure Event) of the Agreement the (FM Termination Amount) shall equal the aggregate, calculated at the Termination Date or such date as required under Section 42.4(g)(iii) of the Agreement, as applicable, of: the Lenders' Liabilities as at that date; Page 9 Attachment 13, Part C

11 (d) all amounts paid by the Shareholders or their Affiliates in relation to the Project Implementation Costs in the form of capital contributions to the share capital of the Concessionaire or as Subordinated Debt up until the Termination Date any amounts actually received by the Shareholders or their Affiliates from the Concessionaire as Distributions or any such amounts that were permitted under the Designated Credit Agreements to be paid to Shareholders but were not so paid as at the Termination Date; provided that all the above amounts payable by RTD in this paragraph shall be paid free and clear of any applicable tax imposed on or to be deducted by the Concessionaire; provided further that if the amount calculated in accordance with this paragraph is then zero, then such amount shall be deemed to equal zero for purposes of calculating the FM Termination Amount under this Section 2 (Calculation of FM Termination Amount); any Subcontractor Breakage Costs; and any reasonable and verifiable costs and expenses of enforcement or protection or preservation of security properly incurred by the Lenders from the Termination Date to the date of payment by RTD. 3. CALCULATION OF LENDERS' LIABILITIES RTD will be entitled to rely on one or more certificates of officers of the Lenders or their agent(s) as conclusive evidence of the amount of the Lenders' Liabilities. The receipt of this amount by the Lenders or their agent(s) will discharge RTD's obligation to pay any element of compensation due to the Concessionaire that is equal to the Lenders' Liabilities. 4. DISPUTES Un otherwise agreed by the Parties, any Dispute of a technical nature that relates to the amounts calculated under Section 2 or 2 of this Part C of Attachment 13 shall be determined by the Technical Panel and any other Dispute as to any other amount referred to in this Part C of Attachment 13 shall be referred to the Financial Panel in accordance with the Dispute Resolution Procedure. Page 10 Attachment 13, Part C