Blue Sphere Corporation 8-K


 


Exhibit
10.2


 


Dated:
4 December 2017


 


 


(1)


Blue
Sphere Brabant B.V.


 


(2)


Anaergia
B.V.


 


 


 


 


 


 


 







 


 


SERVICE,
MAINTENANCE AND OPERATION AGREEMENT 


 


 







 


 



    	 	 	 



    	 



    

 


 


TABLE
OF CONTENTS








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






 


Annexes:


Annex
1 


- Maintenance Plan


Annex
2


- Plan of Analyses


Annex
3 


- Plant Manual of operation


Annex
4 


- Form of Performance Guarantee Agreement


Annex
5 


- Schedule of feedstock arrivals


Annex
6 


- Table of feedstock deviation quality and quantity


Annex
7 


- [intentionally left blank]


Annex
8 


- Form of Insurance Policies


Annex
9  


- Performance Bond


Annex
10 


- Guarantee




    	 	 	 



    	 



    

 


THIS
AGREEMENT is made on 4 December 2017


BETWEEN


1.       


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


2.       


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


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


WHEREAS:


(a)       


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


(b)       


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


(c)       


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


(d)       


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


(e)       


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


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


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


1.       


RECITALS
AND ANNEXES


1.1       


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






    	 	3	 



     


    

1.2       


The
annexes are as follows:




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



 

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


1.3       


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


2.       


OBJECT
OF THE AGREEMENT


2.1       


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


2.2       


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


2.3       


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


2.4       


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


2.5       


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


2.6       


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




    	 	4	 



     


    




2.7       


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


2.8       


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


3.       


TECHNICAL
DATA


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


4.       


OPERATION
SERVICE


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


	 	Feedstock
    delivery	Plant
                                         Operators / vehicle movement inside reception hall

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


Table
1: Permitted operating hours


The
components of the Operation Service include:


4.1       


Operation
and Supervision of the Plant




    	 	5	 



     


    




●


Operation



SM&O
Contractor will:


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


●


Perform
constant monitoring, tuning and maintenance


●


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


●


Execute
daily routine analyses for process control in house lab


●


Monitor
and record the Plant’s emissions


●


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


●


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


●


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


●


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


●


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


●


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




    	 	6	 



     


    

 


●


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


●


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


●


Process
and laboratory activities and advice


A)
Activities in the Plant


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


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


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


B)
Laboratory activities


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


(i)       


definition
and analysis of the operation of the Plant;


(ii)       


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


(iii)       


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


(iv)       


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


C)
Assessment of operating data


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


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


(i)       


the
daily quantity of feedstock;


(ii)       


a
theoretical calculation of daily biogas production;


(iii)       


a
determination of actual production and composition of biogas;


(iv)       


a
comparison of the theoretical and real data; and


(v)       


a
diagram of the Plant management parameters.




    	 	7	 



     


    




●


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


4.2       


Operations
Reporting


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


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


●


Feedstock
fed in (quantity and quality)


●


average
degradation yield


●


biogas
produced and its composition


●


upgraded
biogas generated


●


any
faults and maintenance


The
above data shall be regularly monitored and recorded.


5.       


S&M
SERVICE


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


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


5.1       


The
S&M Service shall consist of:


Maintenance
of the Plant


●


Ordinary
Scheduled Maintenance of the Plant


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


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


●


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




    	 	8	 



     


    




●


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


●


Functional
inspection of equipment and instruments.


●


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


●


Scheduled
inspection and verification of current electrical draw.


●


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


●


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


●


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


●


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


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


●


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


●


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


●


compilation
of tax records.


●


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


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


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


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


●


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


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


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


●


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


●


Wear
parts;




    	 	9	 



     


    




●


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


●


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


●


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


●


Laboratory
tests of lubricants;


●


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


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


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


●


Unscheduled
extraordinary maintenance


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


5.2       


S&M
Reporting


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




    	 	10	 



     


    




6.       


Personnel
of the SM&O Contractor


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


Professional
Positions:


●


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


●


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


●


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


●


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


7.       


On-call
service


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


8.       


OBLIGATIONS
OF CLIENT


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


(a)       


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




    	 	11	 



     


    




(b)       


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


(c)       


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


(d)       


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


(e)       


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


(f)       


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


(g)       


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


(h)       


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


(i)       


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


(j)       


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


(k)       


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


(l)       


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


(m)       


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


(n)       


Site
security


(o)       


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


9.       


OBLIGATIONS
OF SM&O CONTRACTOR


9.1       


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


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


(a)       


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


(b)       


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




    	 	12	 



     


    




(c)       


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


(d)       


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


(e)       


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


(f)       


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


9.2       


Operations
and Maintenance Performance Bond/Guarantee


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


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


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


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


10.       


CLIENT
MANAGER


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


11.       


INSURANCE
COVERAGE


11.1       


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




    	 	13	 



     


    




11.2       


‘Machinery
breakdown’ insurance is insurance covering:


●


all
Risk coverage including, but not limited to:


(i)       


machinery
breakdown;


(ii)       


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


(iii)       


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


(iv)       


breakage
by centrifugal force;


(v)       


high-/low-pressure;


(vi)       


storm,
ice, freeze.


●


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


●


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


●


The
deductible will not exceed EUR USD 10,000.


11.3       


‘Machinery
breakdown business interruption’ is defined as:


●


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


●


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


●


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


●


The
deductible will not exceed 7 days.


12.       


PERSONNEL
SAFETY AND HYGIENE


12.1       


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


12.2       


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


12.3       


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


12.4       


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




    	 	14	 



     


    




●


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


●


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


●


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


●


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


●


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


●


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


13.       


TERM
OF THE AGREEMENT AND TERMINATION


13.1       


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


(i)       


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


(ii)       


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


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


13.2       


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


(i)       


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


(ii)       


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


(iii)       


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




    	 	15	 



     


    




(iv)       


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


13.3       


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


(i)       


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


(ii)       


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


13.4       


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


13.5       


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


14.       


PLANT
PERFORMANCE, EXPENSES AND OPERATION SERVICE COMPENSATION


14.1       


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


14.2       


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


15.       


COMPENSATION


15.1       


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


Operation
and S&M Services:


Fix
Monthly fee:


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


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


Excluding
Pass Through Costs.


Pass
Through Costs:


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


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


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




    	 	16	 



     


    




15.2       


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


15.3       


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


15.4       


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


15.5       


If
the Client disputes an invoice or a part thereof:


(a)       


it
shall pay the undisputed part on the due date;


(b)       


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


15.6       


Interest


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


15.7       


Taxes


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


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


16.       


INDEXATION
OF COSTS


16.1       


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


16.2       


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


17.       


RIGHTS
FOR RECOVERY OF PENALTIES AND INCENTIVES


17.1       


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




    	 	17	 



     


    




a)       


Biomethane
Production:


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


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


b)       


Consumables
Consumption:


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


With
X = Contractually guaranteed consumption of respective Consumable.


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


17.2       


Performance
Incentive:


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


a)       


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


b)       


Consume
less Consumables/Utilities than guaranteed


a)   


    


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


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


b)       


Consumables
Consumption:


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


With
X = Contractually guaranteed consumption of respective Consumable.


18.       


RIGHTS
OF SM&O CONTRACTOR


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


●


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


●


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


●


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




    	 	18	 



     


    




●


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


●


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


●


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


●


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


●


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


19.       


REPRESENTATIONS
OF CLIENT


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


20.       


SUBCONTRACTING


21.       


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


22.       


NON
SOLICITATION


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


23.       


ENVIRONMENTAL
MATTERS


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




    	 	19	 



     


    




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


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


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


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


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


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


24.       


WARRANTY


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


25.       


SEVERABILITY
OF PROVISIONS - REPRESENTATIONS


25.1       


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


25.2       


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


26.       


AMENDMENTS


26.1       


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




    	 	20	 



     


    




26.2       


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


26.3       


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


27.       


AMENDMENTS
TO THIS AGREEMENT BY THE LENDER


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


28.       


NOTIFICATION
AND PROCESSING OF DATA


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


[
]


29.       


FORCE
MAJEURE EVENT


29.1       


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


29.2       


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


29.3       


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


(i)       


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


(ii)       


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




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(iii)       


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


29.4       


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


(i)       


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


(ii)       


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


(iii)       


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


29.5       


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


29.6       


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


29.7       


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


30.       


ASSIGNMENT
OF RIGHTS


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


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




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


31.       


CONDITION
PRECEDENT (“Opschortende Voorwaarde”)


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


Fulfilment
of conditions precedent


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


Termination


If
the Condition is not satisfied or waived on or before the Long Stop Date, this Agreement will not constitute rights and obligations
and parties shall not have any claim against the other Party under it, save for any claim arising from breach of any obligation
contained in Article 31 under “Fulfilment of conditions precedent”.


32.       


PROCEDURE
FOR DECISION OF DISPUTES BY THE RULER


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


(i)       


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


(ii)       


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


(iii)       


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


(iv)       


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


(v)       


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


33.       


ARBITRATION,
JURISDICTION, APPLICABLE LAW


1.1       


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


1.2       


This
Agreement shall be governed by Netherlands law.


1.3       


The
language of the arbitration will be English.




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


 





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












 








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