"5 Year Maintenance Plan"

means the plan, to be prepared by or on behalf of Sub-hubco, for any works for the maintenance or repair of the Facilities, including the renewal or replacement of plant or equipment as necessary, during each rolling five year period for the duration of the Project Term;

["Acquired Rights Directive"

means Council Directives 77/187/EEC and 2001/23/EC];

"Actual Commissioning End Date"

means the date specified in the Commissioning Completion Certificate issued by the Independent Tester pursuant to Clause 18.4;

"Actual Completion Date"

means the later of:

(a) the date stated in the Certificate of Practical Completion issued by the Independent Tester pursuant to Clause 17.12; and

(b) subject to Clause 14.5, the Completion Date;

"Actual Liability"

has the meaning given in Clause 46.7.346.7.3;

"Additional Permitted Borrowing"

means on any date, the amount equal to any amount of principal outstanding under the Senior Funding Agreements (as the same may from time to time be amended, whether or not with the approval of the Authority) in excess of the amount of principal scheduled under the Senior Funding Agreements at Financial Close to be outstanding at that date;

but only to the extent that:

(a) this amount is less than or equal to the Additional Permitted Borrowings Limit; and

(b) in respect of any Additional Permitted Borrowing the Agent is not in material breach of its obligations under clause 9.4.3 of the Funders' Direct Agreement as it applies to such Additional Permitted Borrowing,

and provided further that any such excess amount of principal which is:

(i) invested as part of any Qualifying Change; or

(ii) outstanding from time to time as a result of any drawing under the Senior Funding Agreements as entered into at the date of this Agreement, disregarding any subsequent amendment; or

(iii) outstanding from time to time as a result of any amendment to the Senior Funding Agreements in respect of which the Authority has agreed that its liabilities on a termination may be increased pursuant to Clause 4.3

(iv) shall not be counted as Additional Permitted Borrowing;

"Additional Permitted Borrowings Limit"

means an amount equal to:

(a) 10% of the Original Senior Commitment, for any Additional Permitted Borrowing subsisting in the period from the date of Financial Close to the date on which the amount outstanding under the Senior Funding Agreements is reduced to 50% or less of the Original Senior Commitment; and thereafter

(b) the higher of:

(i) 5% of the Original Senior Commitment; and

(ii) the amount of any Additional Permitted Borrowing outstanding on the last day of the period referred to in paragraph 73.2(a);

"Adjudicator"

has the meaning given in paragraph 4.1 of Schedule Part 20 (Dispute Resolution Procedure);

"Affiliate"

means, in relation to any person, any holding company or subsidiary of that person or any subsidiary of such holding company, and "holding company" and "subsidiary" shall have the meaning given to them in section 1159 of the Companies Act 2006;

"Agent"

has the meaning given in the Funders' Direct Agreement;

"Ancillary Documents"

means the Construction Contract, the Service Contracts and the Performance Guarantees [and to be inserted], all as the same may be amended or replaced from time to time;

"Ancillary Rights"

means such rights as set out in Section 3 (Ancillary Rights) of Schedule Part 5 (Land Matters);

"Annual Service Payment"

has the meaning given in Schedule Part 14 (Payment Mechanism);

"Approved RDD Item"

means an item of Reviewable Design Data which has been returned or has been deemed to have been returned endorsed either "Level A - no comment" or "Level B - proceed subject to amendment as noted" by the Authority's Representative pursuant to the provisions of Clause 12 (Design, Construction and Commissioning Process) and Schedule Part 8 (Review Procedure) (provided that in the case of any item of Reviewable Design Data which has been returned or has been deemed to have been returned endorsed "Level B - proceed subject to amendment as noted" Sub-hubco has taken account of the Authority's Representative's comments), as such item of Reviewable Design Data may be varied or amended from time to time in accordance with Schedule Part 16 (Change Protocol);

["Assigned Employees"

has the meaning given in Clause 25.30.1]

"Associated Companies"

means, in respect of a relevant company, a company which is a Subsidiary, a Holding Company or a company that is a Subsidiary of the ultimate Holding Company of that relevant company, and in the case of Sub-hubco shall include [hubco] and each of the Shareholders, and the term "Associate" shall be interpreted accordingly;

"Authority Assets"

means the [insert details of Authority existing premises/sites etc] and any other assets and equipment or other property used by, or on behalf of, the Authority or any Authority Party, other than the Facilities;

["Authority Break Point Date"

means [ ];]

"Authority Change"

has the meaning given in Schedule Part 16 (Change Protocol);

"Authority Change Notice"

has the meaning given in Schedule Part 16 (Change Protocol);

["Authority Employee"

means in relation to any service equivalent to the Services (or any part thereof), all those persons employed by the Authority under a contract of employment (excluding, to avoid doubt (without limitation), any person engaged by the Authority as an independent contractor or persons employed by any sub-contractor engaged by the Authority) who are wholly or substantially engaged in the provision of that service as at the Relevant Service Transfer Date;]

"Authority Events of Default"

has the meaning given in Clause 39.1;

"Authority Party"

means any of the Authority's agents, contractors and sub contractors of any tier and its or their directors, officers and employees and/or [Community Services Providers] at the Facilities with the authority of the Authority but excluding Sub-hubco, any Sub-hubco Party and statutory undertakers and utilities and "Authority Parties" shall be construed accordingly;

"Authority Policies"

means, subject to Clause 27.7, the policies of the Authority set out in the document annexed to this Agreement as Attachment [ ] as amended from time to time;

"Authority's Commissioning"

means the Authority's pre-completion commissioning activities to be carried out by the Authority in accordance with Clause 17 (Pre-Completion Commissioning and Completion);

"Authority's Construction Requirements"

means the requirements of the Authority set out or identified in Section 3 (Authority's Construction Requirements) of Schedule Part 6 (Construction Matters) as amended from time to time in accordance with the terms of this Agreement;

"Authority Distribution Share"

means the greater of:

(a) half of the First Threshold Excess; and

(b) the Second Threshold Excess;

"Authority's Maintenance Obligations"

has the meaning given in Clause 23.13;

"Authority's Post Completion Commissioning"

means the Authority's post-completion commissioning activities to be carried out by the Authority in accordance with Clause 18.1 (Post Completion Commissioning);

"Authority's Representative"

means the person so appointed by the Authority pursuant to Clause 8 (Representatives);

"Availability Failure"

has the meaning given in Schedule Part 14 (Payment Mechanism);

"Base Date"

has the meaning given in paragraph 16 of Section 2 (Interpretation) of Schedule Part 1 (Definitions and Interpretation);

"Base Senior Debt Termination Amount"

has the meaning given in Section 6 (Definitions) of Schedule Part 17 (Compensation on Termination);

"Beneficiary"

has the meaning given in Clause 49.3 (Conduct of Claims) ;

["Bulk Transfer"

means where a Pensionable Authority Employee elects to transfer accrued benefits from a Transferor Scheme to a Transferee Scheme, that the Pensionable Authority Employee shall be awarded benefit credits in the Transferee Scheme which are, in actuarial terms, of equivalent value to the benefit credits which the Pensionable Authority Employee held in the Transferee Scheme immediately prior to the transfer of benefits taking effect;]

"Business Day"

means a day other than a Saturday, Sunday or a bank holiday in Edinburgh;

"Capital Expenditure"

means capital expenditure (as such term is interpreted in accordance with generally accepted accounting principles in the United Kingdom from time to time);

"CDM Regulations"

has the meaning given in Section 2 (Safety During Construction) of Schedule Part 6 (Construction Matters);

"Certificate of Practical Completion"

means a certificate in the relevant form set out in Schedule Part 22 (Certificates) ;

"Change"

has the meaning given in Schedule Part 16 (Change Protocol);

"Change in Control"

means:

(a) any sale or other disposal of any legal, beneficial or equitable interest in any or all of the equity share capital of a corporation (including the control over the exercise of voting rights conferred on that equity share capital, control over the right to appoint or remove directors or the rights to dividends); and/or

(b) any other arrangements that have or may have or which result in the same effect as paragraph (a) above;

"Change in Law"

means the coming into effect or repeal (without re-enactment or consolidation) in Scotland of any Law, or any amendment or variation to any Law, or any judgement of a relevant court of law which changes binding precedent in Scotland in each case after the date of this Agreement;

"Collateral Agreements"

means the Contractor's Collateral Agreement, the Service Providers' Collateral Agreements [and the Key Sub-Contractor Collateral Agreements];

"Commencement Date"

means [the date of this Agreement];

"Commercially Sensitive Information"

means the sub set of Confidential Information listed in [column 1 of Part 1 (Commercially Sensitive Contractual Provisions) and column 1 of Part 2 (Commercially Sensitive Material) of Schedule Part 26 (Commercially Sensitive Information) in each case for the period specified in column 2 of Parts 1 and 2 of Schedule Part 26 (Commercially Sensitive Information)];

"Commissioners"

has the meaning given in Clause 35.3;

"Commissioning Completion Certificate"

means a certificate in the relevant form set out in Schedule Part 22 (Certificates) ;

"Commissioning End Date"

means the date by which the parties' commissioning activities are programmed to be completed in accordance with the Final Commissioning Programme;

["Committed Standby Facility"]

means [ ];]

"Community Services"

means [ ] and such other services as may be notified to Sub-hubco by the Authority from time to time;

"Community Services Provider"

means any organisation (excluding for the avoidance of doubt the Authority providing any of the Community Services at the Facilities from time to time;

"Compensation Event"

has the meaning given in Clause 29.10;

"Compensation Payment"

has the meaning given in Clause 46.6;

["Completion Criteria"

means the Completion Tests as defined in Appendix [ ] of Schedule Part 10 (Outline Commissioning Programme) and as may be applicable to each Phase;]

"Completion Date"

means [ ] or such revised date as may be specified by the Authority's Representative pursuant to Clause 29 (Delay Events) or such other date as may be agreed by the parties;

"Confidential Information"

means:-

(a) information that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would, or would be likely to, prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1988 and

(b) Commercially Sensitive Information;

"Consents"

means all permissions, consents, approvals, certificates, permits, licences, statutory agreements and authorisations required by Law, and all necessary consents and agreements from any third parties (including, without limitation, any Planning Permission), needed to carry out the Project Operations in accordance with this Agreement;

"Construction Contract"

means the design and build contract dated the same date as this Agreement between Sub-hubco and the Contractor (which, as at the date of this Agreement, is in the Agreed Form) as amended or replaced from time to time in accordance with this Agreement;

"Construction Phase"

means [in respect of a Phase] the period from and including the date of execution of this Agreement to and including the Actual Completion Date [relevant Phase Actual Completion Date];

"Construction Quality Plan"

means the document at Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters);

"Contamination"

means all or any pollutants or contaminants, including any chemical or industrial, radioactive, dangerous, toxic or hazardous substance, waste or residue (whether in solid, semi-solid or liquid form or a gas or vapour) and including without limitation genetically modified organisms;

"Contract Month"

means a calendar month provided that:

(a) the first Contract Month shall be the period from and including the Payment Commencement Date to and including the last day of the calendar month in which the Payment Commencement Date falls; and

(b) the last Contract Month shall be the period from and including the first day of the calendar month in which the Expiry Date or Termination Date (as the case may be) falls to and including the Expiry Date or the Termination Date (as the case may be);

"Contract Year"

means the period of twelve (12) calendar months commencing on and including [the date of this Agreement] and each subsequent period of twelve (12) calendar months commencing on each anniversary of [the date of this Agreement], provided that the final Contract Year shall be such period as commences on and includes the anniversary of [the date of this Agreement] that falls in the year in which this Agreement expires or is terminated (for whatever reason) and ends on and includes the date of expiry or earlier termination of this Agreement (as the case may be);

"Contracting Associate"

means the Contractor, any Service Provider [and any other entity which performs on behalf of Sub-hubco any material function in connection with this Agreement or the Project Operations];

"Contractor"

means [ ] engaged by Sub-hubco to carry out the Works and any substitute design and/or building contractor engaged by Sub-hubco as may be permitted by this Agreement;

"Contractor's Collateral Agreement"

means a collateral agreement among the Authority, Sub-hubco and the Contractor in the form set out in Section 1 of Schedule Part 9 (Collateral Agreements);

"Contractor's Site Manager"

means the manager to be appointed by the Contractor for purposes of supervision of all day-to-day activities on the Site;

"Contractor's Site Rules"

means the Contractor's rules, applicable on the Site to the Authority, Sub-hubco, the Contractor and their respective sub-contractors and suppliers of every tier during the construction of the Facilities;

"Convictions"

means other than in relation to minor road traffic offences, any previous or pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of The Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in Part II of Schedule 1 of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) and the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003 Scottish SI 2003/231) or any replacement or amendment to those Orders);

"Decanting and Decommissioning"

means [see Clause 18.8];

"Deduction"

means a deduction to be made in calculating a Monthly Service Payment, calculated in accordance with Section 3 (Deductions from Monthly Service Payments) of Schedule Part 14 (Payment Mechanism);

"Deemed Liability"

has the meaning given in Clause 46.7.3;

"Default Interest"

means any increased margin that is payable to the Senior Funders or which accrues as a result of any payment due to the Senior Funders not being made on the date on which it is due;

"Default Interest Rate"

means 2% over LIBOR;

"Defects"

means any defect or fault in the Works and/or the Facilities (not being a Snagging Matter) which occurs due to a failure by Sub-hubco to meet the Authority's Construction Requirements and/or Sub-hubco's Proposals or otherwise to comply with its obligations under this Agreement;

"Delay Event"

has the meaning given in Clause 29.3;

["Derogated Low Value Change"

has the meaning given in Schedule Part 16 (Change Protocol);]

"Design Data"

means all drawings, reports, documents, plans, software, formulae, calculations and other data relating to the design, construction, testing and/or operation of the Facilities;

"Design Quality Plan"

means the document at Section 8 (Quality Plans (Design and Construction))of Schedule Part 6 (Construction Matters);

"Direct Losses"

means, subject to the provisions of Clause 54.1, all damage, losses, liabilities, claims, actions, costs, expenses (including the cost of legal or professional services, legal costs being on an agent/client, client paying basis), proceedings, demands and charges whether arising under statute, contract or at common law but, to avoid doubt, excluding Indirect Losses;

"Disclosed Data"

means any Design Data and any other written information, data and documents [(excluding for the avoidance of doubt information contained in the First Employee List or any subsequently updated version of that list)] made available or issued to Sub-hubco or any Sub-hubco Party in connection with the Project by or on behalf of the Authority (or any Authority Party) whether on, before or after the execution of this Agreement;

"Distribution"

has the meaning given in Schedule Part 23 (Refinancing) (excluding limb (b) of that definition);

"Distribution Date"

means a date during the Project Term or after its expiry on which Sub-hubco intends to make a Distribution;

"Dividend"

means any dividend or distribution made or paid by Sub-hubco on its share capital;

"Dispute"

has the meaning given in paragraph 1 of Schedule Part 20 (Dispute Resolution Procedure);

"Dispute Resolution Procedure"

means the procedure set out in Schedule Part 20 (Dispute Resolution Procedure);

"Emergency"

means an event causing or, in the reasonable opinion of a party, threatening to cause death or injury to any individual, or serious disruption to the lives of a number of people or extensive damage to property, or contamination of the environment, in each case on a scale beyond the capacity of the emergency services or preventing the Services operating under normal circumstances and requiring the mobilisation and organisation of the emergency services;

"Encumbrance"

means any option, right of pre-emption, pledge, security, interest, lien, charge, mortgage, lease, licence, claim, condition, retention or other encumbrance or restriction whether imposed by agreement, by law or otherwise;

["Employee Transfer"

means a relevant transfer of a undertaking in accordance with the Transfer Regulations;]

"Environmental Information (Scotland) Regulations"

means the Environmental Information (Scotland) Regulations 2004 together with any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant Government Department in relation to such regulations;

["Equal Pay Adjustment"

means in relation to any Transferring Authority Employee any alteration to salaries and pay scales in order to settle, address or compromise threatened or extant claims or grievances under the Equal Pay Legislation (including, for the avoidance of doubt, as a result of an Equal Pay Ruling) which has its origin in any act or omission of the Authority before the Relevant Service Transfer Date and whether such claim relates to the periods before and/or after the Relevant Service Transfer Date against the Authority or Sub-hubco;]

["Equal Pay Legislation"

means any and all the legislation relating to equality of pay between men and women consisting of the Equal Pay Act 1970, the Sex Discrimination Act 1975, Article 157 of the Treaty on the Functioning of the European Union, the Equal Treatment Directive (Recast) (2006/54/EC), and Chapters 1 and 3 of Part 5 to the Equality Act 2010;]

["Equal Pay Ruling"

means the determination by an employment tribunal or court of competent jurisdiction or any settlement or compromise to which the Authority has given consent (such consent not to be unreasonably withheld or delayed) in relation to any claim or grievance brought by any Transferring Authority Employee against the Authority or Sub-hubco or a Service Provider under the Equal Pay Legislation which has its origin in any act or omission of the Authority before the Relevant Service Transfer Date and whether such claim relates to the periods before and/or after the Relevant Service Transfer Date, that the terms and conditions of employment relating to the pay of the Transferring Authority Employee contravene Equal Pay Legislation;]

"Equipment"

means [ ]

"Equity"

means the aggregate subscription price paid by the Shareholders for the ordinary share capital of Sub-hubco;

"Estimated Deductions"

has the meaning given in Clause 34.2.1;

"Estimated Increased Maintenance Costs"

has the meaning given in Clause 23.7;

"Excusing Cause"

has the meaning given in Clause 51.2;

"Expiry Date"

means [midnight] on [date];

"Facilities"

means [the buildings and other facilities, together with all supporting infrastructure (including the Plant and [the Group 1 Equipment]), external hard-standings, specialist surfaces and other amenities located on the Site (including as a minimum all aspects detailed within Appendix B to Section 1 (Service Level Specification) of Schedule Part 12 (Service Requirements), as required to enable Sub-hubco to comply with its obligations under this Agreement, all as the same may be varied, amended or supplemented from time to time in accordance with this Agreement];

["Facility Manager"

means Sub-hubco's duty manager who shall be present at the Facilities in accordance with the Service Level Specification;]

"Fees Regulations"

means the Freedom of Information (Fees for Required Disclosure (Scotland)) Regulations 2004 ;

["Final Employee List"

has the meaning given in Clause 25.10;]

"Final Commissioning Programme"

means the programme jointly developed and agreed by the Authority and Sub-hubco in accordance with the provisions of Clause 17.1;

"Financial Close"

means the date of this Agreement;

"Financial Model"

means the computer spreadsheet model for the Project incorporating statements of Sub-hubco's cashflows including all expenditure, revenues, financing and taxation of the Project Operations together with the profit and loss accounts and balance sheets for Sub-hubco throughout the Project Term accompanied by details of all assumptions, calculations and methodology used in their compilation and any other documentation necessary or desirable to operate the model, as amended from time to time in accordance with the terms of Clause 37 (Financial Model), a copy of which is attached to this Agreement on disk as Attachment [ ];

"Finishes Proposal Date"

means, in relation to a Finish, the relevant date identified in the table set out in paragraph 1.2.3 of Schedule Part 8 (Review Procedure);

"Finishes Selection Date"

means, in relation to a Finish, the relevant date identified in the table set out in paragraph 1.2.3 of Schedule Part 8 (Review Procedure);

"Finishes"

means those finishes listed in the table set out in paragraph 1.2.3 of Schedule Part 8 (Review Procedure);

["First Employee List"

has the meaning given in Clause 25.9;]

"First Party"

has the meaning given in Clause 35.3;

"First Whole Life Threshold Return"

means [to be inserted from PSDP's winning bid]%;

"First Threshold Excess"

means the portion, if any of a Proposed Distribution that would, if paid to the Investors on the Relevant Distribution Date, result in the Investor Return being in excess of the First Whole Life Threshold Return, but not more than the Second Whole Life Threshold Return;

"FOI(S)A"

means the Freedom of Information (Scotland) Act 2002 and any subordinate legislation (as defined in section 73 of the Freedom of Information (Scotland) Act 2002) made under the Freedom of Information (Scotland) Act 2002 from time to time together with any guidance and/or codes of practice issued by the Scottish Information Commissioner or relevant Government department in relation to such Act;

"Force Majeure"

has the meaning given in Clause 31 (Force Majeure);

"Functional Area"

means an area of the Facilities identified as such in [Appendix 2 to Schedule Part 14 (Payment Mechanism)];

"Funders"

means all or any of the persons who provide financing or funding in respect of the Project Operations under the Funding Agreements including [ ] and, where the context so permits, prospective financiers or funders;

"Funders' Direct Agreement"

means the agreement to be entered into between the Authority, the Senior Funders and Sub-hubco in the form set out in Schedule Part 4 (Funders' Direct Agreement);

"Funding Agreements"

means all or any of the agreements or instruments to be entered into by Sub-hubco or any of its Associates relating to the financing of the Project Operations (including the Initial Funding Agreements and any agreements or instruments to be entered into by Sub-hubco or any of its Associates relating to the rescheduling of their indebtedness or the refinancing of the Project Operations);

"Funding Default"

means [ ];

"Good Industry Practice"

means using standards, practices, methods and procedures conforming to the Law and exercising that degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under the same or similar circumstances;

"Government"

means the government of the United Kingdom or the Scottish Ministers;

"Ground Physical and Geophysical Investigation"

means the investigation of all the conditions of and surrounding the Site and of any extraneous materials in, on or under the Site (including its surface and subsoil) to enable the Facilities to be designed and constructed and the Works to be carried out with due regard for those conditions and the seismic activity (if any) in the region of the Site;

"H&S Conviction"

has the meaning given in Clause 40.1.5 ;

"Handback Amount"

has the meaning given in Schedule Part 18 (Handback Procedure);

"Handback Bond"

has the meaning given in Schedule Part 18 (Handback Procedure);

"Handback Certificate"

means the certificate of confirmation that the Facilities comply with the Handback Requirements in the relevant form set out in Schedule Part 18 (Handback Procedure);

"Handback Programme"

has the meaning given in Schedule Part 18 (Handback Procedure);

"Handback Requirements"

has the meaning given in Schedule Part 18 (Handback Procedure);

"Handback Works"

has the meaning given in Schedule Part 18 (Handback Procedure);

"Health and Safety Regime"

means the Food Safety Act 1990 (and associated regulations), the Health & Safety at Work etc Act 1974 (and associated regulations), the Fire Precautions Act 1971, the Environmental Protection Act 1990 and the Water Industry (Scotland) Act 2002 and any similar or analogous health, safety or environmental legislation in force from time to time;

["Health Board"

means a health board established under section 2 of the National Health Service (Scotland) Act 1978 (or any successor body to any such body established with substantially the same powers or duties);]

"High Value Change Stage 2 Submission"

has the meaning given in Schedule Part 16 (Change Protocol);

"Holding Company"

has the meaning given to it in section 1159 of the Companies Act 2006;

"Hours for Programmed Maintenance"

has the meaning given in Appendix 2 of Schedule Part 8 (Review Procedure);

"Hours of Operation"

has the meaning given in Appendix 2 of Schedule Part 8 (Review Procedure);

"hubco"

means [ ];

"Indemnifier"

has the meaning given in Clause 49.3 (Conduct of Claims);

"Indemnity Period"

means [ ];

"Independent Tester"

means the [insert name of Independent Tester] or such substitute independent tester as may be permitted pursuant to this Agreement;

"Independent Tester Contract"

means the contract dated the same date as this Agreement in the form set out in Schedule Part 13 (Independent Tester Contract) or any replacement thereof among Sub-hubco, the Authority and the Independent Tester;

"Indirect Losses"

has the meaning given in Clause 54.1 (Exclusions and Limits on Liability);

"Information"

has the meaning given under section 73 of the Freedom of Information (Scotland) Act 2002;

["Initial Bulk Transfer"

has the meaning given in Clause 26.6;]

"Initial Funding Agreements"

means [ ] in the Agreed Form;

"Insurance Proceeds Account"

means the account numbered [ ] in the joint names of Sub-hubco and the Authority with the [Account Bank (as defined in the Funding Agreement)];

"Insurance Proceeds Account Agreement"

means the agreement in the form set out in Schedule Part 25 (Insurance Proceeds Account Agreement);

"Insurance Term"

means any term and/or condition required to be included in a policy of insurance by Clause 53 (Insurance) and/or Schedule Part 15 (Insurance Requirements) but excluding any risk;

"Insurances"

means, as the context requires, all or any of the insurances required to be maintained by Sub-hubco pursuant to this Agreement;

"Intellectual Property"

means all registered or unregistered trademarks, service marks, patents, registered designs, utility models, applications for any of the foregoing, copyrights, unregistered designs, the sui generis rights of extraction relating to databases, trade secrets and other confidential information or know-how;

"Intellectual Property Rights"

means the Intellectual Property which (or the subject matter of which) is created, brought into existence, acquired, used or intended to be used by Sub-hubco, any Sub-hubco Party or by other third parties (for the use by or on behalf of or for the benefit of Sub-hubco) for the purposes of the design or construction of the Facilities, the operation, maintenance, improvement and/or testing of the Facilities or the conduct of any other Project Operation or otherwise for the purposes of this Agreement;

"Interest"

means any interest in Relevant Debt paid by Sub-hubco;

"Interim Project Report"

means [ ];

"Investor Return"

means the projected final blended internal rate of return of the Investors post tax (in relation to any tax payable or to be paid by Sub-hubco on the aggregate of the Subordinated Debt and Equity expressed in nominal terms having regard to:

(a) all actual Distributions that have been made or paid to the Investors;

(b) the Proposed Distribution at the relevant Distribution Date and

(c) all Projected Distributions

and calculated from the actual point of investment of moneys by the Investors rather than the point of commitment to invest on the assumption, whether or not a fact, that the Investors are a single person ;

"Investors"

means the Shareholders and the holders of the Subordinated Debt in each case for the time being;

"IT"

means information technology systems, hardware and software;

"Key Sub-Contractor"

means [ ];

"Key Sub-Contractor Collateral Agreements"

means the collateral agreement among the Authority, Sub-hubco [, the Contractor] and the Key Sub-Contractors in the form set out in Section 3 of Schedule Part 9 (Collateral Agreements);

"Law"

means:

(a) any applicable statute or proclamation or any delegated or subordinate legislation;

(b) any enforceable community right within the meaning of section 2(1) of the European Communities Act 1972;

(c) any applicable guidance, direction or determination with which the Authority and/or Sub-hubco is bound to comply to the extent that the same are published and publicly available or the existence or contents of them have been notified to Sub-hubco by the Authority; and

(d) any applicable judgement of a relevant court of law which is a binding precedent in Scotland,

in each case in force in Scotland;

"LIBOR"

means the rate per annum determined by [ ] Bank plc to be the offered rate for six month sterling deposits in the London interbank market which appears on Telerate Page 3750 (or such other page as may replace that page on the Dow Jones Telerate service);

"Low Value Change"

has the meaning given in Schedule Part 16 (Change Protocol);

"Maintenance Works"

means any works for maintenance or repair of the Facilities that are necessary to ensure that the Facilities are maintained in accordance with Service Level Specification and Method Statements and that the Facilities comply with the Authority's Construction Requirements and Sub-hubco's Proposals (including, without limitation, the renewal or replacement of any Plant or equipment) throughout the Project Term;

"Malicious Damage Report"

has the meaning given in Clause 49A.2.1;

["Medical Contamination"

means a disease carrying agent which cleaning and prevention of infection or contamination techniques in use in accordance with Good Industry Practice and this Agreement cannot substantially prevent or cannot substantially remove with the result that:

(a) it is unsafe to admit patients or staff to the relevant area or to use the area for the purpose for which it is intended; and

(b) the area cannot be made safe for the admission of patients or staff];

"Medium Value Change"

has the meaning given in Schedule Part 16 (Change Protocol);

"Method Statements"

means the method of providing a Service as set out or identified in Section 2 (Method Statements) of Schedule Part 12 (Service Requirements) as amended from time to time in accordance with Clause 33 (Change Protocol) and Clause 22 (The Services);

"Monthly Service Payment"

has the meaning given in Schedule Part 14 (Payment Mechanism);

"Monthly Service Report"

means a monthly report to be prepared by Sub-hubco and provided to the Authority in accordance with the relevant provisions in Section 1 (Service Level Specification) of Schedule Part 12 (Service Requirements);

["NHS"

means the National Health Service]

["NHS Pension Scheme"

means [to be inserted by the Authority on a project specific basis, in context of the NHS pension scheme at the time this Agreement is to be signed]]

["NHS Requirement"

means:

(a) in relation to the Works, Health Building Notes and Health Technical Memoranda and such other requirements as are designated as NHS Requirements in the Authority's Construction Requirements; and

(b) in relation to the Project Operations (other than the Works), Health Building Notes, Health Technical Memoranda, all Executive Letters, Health Service

Guidelines, Health Circulars of the NHS and any similar official requests, requirements and guidance having similar status for the time being in force, but only to the extent the same are published and publicly available or the existence and contents of them have been notified to Sub-hubco by the Authority]

"Operational Functionality"

means [ ];

"Operational Insurances"

means the insurances required by Clause 53.2 and "Operational Insurance" means any one of such insurances;

"Operational Term"

means [in respect of a Phase] the period from the Actual Completion Date [Phase Actual Completion Date] until the end of the Project Term;

"Option Period"

has the meaning given in Clause 53.14.3 (Uninsurable Risks);

"Original Senior Commitment"

means the amount committed under the Senior Funding Agreements as at Financial Close (as adjusted to take into account any Qualifying Change);

"Outline Commissioning Programme"

means the programme setting out the standards, specifications, procedures and other requirements for the carrying out and completion of the commissioning activities of the parties set out in outline in Schedule Part 10 (Outline Commissioning Programme);

"Participant"

has the meaning given in the Territory Partnering Agreement;

"Pay"

means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the Authority Transferring Employee receives either directly or indirectly in respect of his or her employment, from his/her employer;

"Payment Commencement Date"

means the Actual Completion Date;

["Payment Commencement Date 1"

means the Phase 1 Actual Completion Date;]

["Payment Commencement Date 2"

means the Phase 2 Actual Completion Date;]

"Payment Mechanism"

means Schedule Part 14 (Payment Mechanism);

["Pensionable Authority Employee"

means an Authority Employee who is a member of or is entitled to be a member of the [NHS Pension Scheme] [LGPS] on or immediately prior to the Relevant Service Transfer Date;]

"Performance Failure"

has the meaning given in Section 1 of Schedule Part 14 (Payment Mechanism);

"Performance Guarantees"

means the guarantees to Sub-hubco in respect of the Construction Contract, the Service Contracts [insert details of any other guarantees to be given] which, as at the date of this Agreement are in the Agreed Form;

"Permitted Borrowing"

means without double-counting, any:

(a) advance to Sub-hubco under the Senior Funding Agreements, provided that such advance is not made under any Committed Standby Facility;

(b) Additional Permitted Borrowing;

(c) advance to Sub-hubco under any Committed Standby Facility which is made solely for the purpose of funding any cost overruns, increased expenses or loss of revenue which Sub-hubco incurs, provided that such funds are not used in substitution for other sources of committed funding designated for those purposes; and

(d) interest and, in respect of the original Senior Funding Agreements only (as entered into at the date of this Agreement, prior to any subsequent amendment), other amounts accrued or payable under the terms of such original Senior Funding Agreements,

except where the amount referred to in paragraphs (a) to (d) above is or is being used to fund a payment of Default Interest on any Additional Permitted Borrowing;

["Phase"

means, as the context may require, Phase 1 and/or Phase 2 as described in Schedule Part [ ] and "Phases" shall be construed accordingly;]

["Phase 1"

means Phase 1 as described in Schedule Part [ ];]

["Phase 1 Actual Completion Date"

means the later of ;

(a) the date of the Certificate of Practical Completion issued by the Independent Tester in respect of Phase 1 pursuant to Clause 17.12; and

(b) subject to Clause 14.5, the Phase 1 Completion Date;]

["Phase 1 Completion Date"

means (subject to Clause 29 (Delay Events)) the date described as such in Schedule Part [ ] or such other date as the parties may agree;]

["Phase 2"

means Phase 2 as described in Schedule Part [ ];]

["Phase 2 Actual Completion Date"

means the later of:

(a) the date of the Certificate of Practical Completion issued by the Independent Tester in respect of Phase 2 pursuant to Clause 17.12; and

(b) subject to Clause 14.5, the Phase 2 Completion Date;]

["Phase 2 Completion Date"

means (subject to Clause 29 (Delay Events)) the date described as such in Schedule Part [ ] or such other date as the parties may agree;]

["Phase Actual Completion Date"

[means, as the context may require, the Phase 1 Actual Completion Date and/or the Phase 2 Actual Completion Date;]

["Phase Completion Date"

[means, as the context may require, the Phase 1 Completion Date and/or the Phase 2 Completion Date;]

"Physical Damage Policies"

means the policies of insurance referred to in paragraph 1 (Contractors' 'All Risk' Insurance) of Section 1 (Policies to be Taken Out by Sub-hubco and Maintained During the Design and Construction Phase) and paragraph 1 (Property Damage) of Section 2 (Policies to be Taken Out By Sub-hubco and Maintained from the Actual Completion Date) of Schedule Part 15 (Insurance Requirements);

"Planning Approval"

means detailed planning consent for the Project dated [insert date of Planning Approval] and annexed as Attachment [ ] ;

"Planning Permission"

means any planning permission, approval of reserved matters, listed building consent, conservation areas consent and/or other consent or approval reasonably required from time to time for construction and/or operation of the Facilities (including without limitation for any Authority Change and the Planning Approval);

"Plant"

means the infrastructure systems, building systems, fixed, and immovable equipment systems, installed as part of the Works or pursuant to an Authority Change as replaced from time to time;

"Post Completion Commissioning"

means, as appropriate, Sub-hubco's Post Completion Commissioning and/or the Authority's Post Completion Commissioning;

"Programme"

means the programme set out in Schedule Part 7 (The Programme) as revised and issued by Sub-hubco (or on its behalf) from time to time pursuant to Clause 14 (Programme and Dates for Completion);

"Programmed Maintenance"

means the maintenance work which Sub-hubco is to carry out in accordance with Schedule of Programmed Maintenance;

"Programmed Maintenance Information"

has the meaning given in Clause 23.3;

"Prohibited Act"

has the meaning given in Clause 44 (Corrupt Gifts and Payments);

"Project"

means [ ] ;

"Project Data"

means:

(a) all Design Data;

(b) all drawings, reports, documents, plans, software, formulae, calculations and other data relating to the provision of the Services; and

(c) any other materials, documents and or data acquired, brought into existence or used in relation to the Project Operations or this Agreement;

"Project Documents"

means the Ancillary Documents and the Funding Agreements;

"Project Operations"

means the carrying out of the Works, the carrying out of Sub-hubco's Pre-Completion Commissioning and Sub-hubco's Post-Completion Commissioning, the management and provision of the Services and the performance of all other obligations of Sub-hubco under this Agreement from time to time;

"Project Term"

means the period commencing at [midnight] on the date of this Agreement and ending on the earlier of the Expiry Date and the Termination Date;

"Projected Distribution"

means sums that are shown in the Financial Model as being paid to the Investors as Distributions at dates after the Relevant Distribution Date;

"Proposed Distribution"

means the aggregate amount of all Distributions that Sub-hubco proposes to make at the Relevant Distribution Date;

["Proposed Workforce"

has the meaning given in Clause 25.11.1;]

"Qualifying Change"

means (unless expressly stated otherwise):

(a) a Low Value Change in respect of which the parties have agreed the method of implementation; or

(b) a Medium Value Change in respect of which the Authority has issued a confirmation notice pursuant to paragraph 7.1.1 of Section 3 (Medium Value Changes) of Schedule Part 16 (Change Protocol); or

(c) a High Value Change which has received Stage 2 Approval pursuant to paragraph 8.2.1 of Section 4 (High Value Changes) of Schedule Part 16 (Change Protocol),

in each case provided that any necessary changes required to be made to any Project Document and/or Ancillary Document pursuant to Schedule Part 16 (Change Protocol) have been given effect to and become unconditional;

"Qualifying Distribution"

has the meaning given in Clause 36.4;

"Quality Plans"

means the Design Quality Plan and Construction Quality Plan, prepared in accordance with Section 8 (Quality Plans (Design and Construction)) of Schedule Part 6 (Construction Matters), and the Services Quality Plan, prepared in accordance with Section 3 (Service Quality Plan) of Schedule Part 12 (Service Requirements), as required to be implemented by Sub-hubco in accordance with Clause 20 (Quality Assurance);

"Range of Finishes"

has the meaning given in paragraph 1.2.3(a) of Schedule Part 8 (Review Procedure);

"Rectification Period"

has the meaning given in Schedule Part 14 (Payment Mechanism);

"Refinancing"

has the meaning given in Schedule Part 23 (Refinancing);

"Reinstatement Plan"

has the meaning given in Clause 53.22 (Reinstatement);

"Reinstatement Works"

has the meaning given in Clause 53.22.2 (Reinstatement);

"Relevant Authority"

means any court with the relevant jurisdiction and any local, national or supra-national agency, inspectorate, minister, ministry, official or public or statutory person of the government of the United Kingdom, or of the European Union, (or of the Scottish Government or the Scottish Parliament);

"Relevant Change in Law"

has the meaning given in Clause 32.3 (Changes in Law);

"Relevant Debt"

means all sums advanced to Sub-hubco from time to time under a Funding Agreement other than Senior Debt;

"Relevant Distribution Date"

means the Distribution Date at which the Qualifying Distribution in question is proposed to be paid;

"Relevant Event"

has the meaning given in Schedule Part 16 (Change Protocol);

"Relevant Incident"

has the meaning given in Clause 53.22.2 (Reinstatement) ;

"Relevant Payment"

has the meaning given in Clause 53.14.3;

"Relevant Proceeds"

has the meaning given in Clause 53.22.2 (Reinstatement);

"Relevant Service Transfer Date"

has the meaning given in Clause 25.1;

"Relevant Tax Liability"

has the meaning given in Clause 46.7.3;

"Relief"

has the meaning given in Clause 46.7.1;

"Relief Events"

has the meaning given in Clause 30 (Relief Events);

["Remuneration Costs"

has the meaning given in Clause 25.11.2];

["Reorganisation Costs"

has the meaning given in Clause 25.11.3];

"Request for Information"

has the meaning set out in the FOI(S)A or the Environmental Information (Scotland) Regulations as relevant (where the meaning set out for the term "request" shall apply);

"Required Action"

has the meaning given in Clause 24.7;

"Reserved Rights"

means the matter referred to in Section 2 (Safety During Construction) of Schedule Part 5 (Land Matters);

"Restricted Person"

means either:

(a) a person (other than a Participant) providing or proposing to provide [ ] services of a similar nature to those provided or contemplated by the Authority at the time in question; or

(b) any person who has a material interest in the production of tobacco products and/or alcoholic beverages;

"Retail Prices Index" or "RPI"

means the Retail Prices Index (All Items) as published by the Office for National Statistics from time to time (the "Index"), or, failing such publication or in the event of a fundamental change to the Index, such other index as the parties may agree, or such adjustments to the Index as the parties may agree (in each case with the intention of putting the parties in no better nor worse position than they would have been in had the Index not ceased to be published or the relevant fundamental change not been made) or, in the event that no such agreement is reached, as may be determined in accordance with the Dispute Resolution Procedure;

"Revenue"

means the projected Unavoidable Fixed Costs and Senior Debt Service Costs of Sub-hubco;

"Reviewable Design Data"

means the Design Data listed at Section 5 (Reviewable Design Data) of Schedule Part 6 (Construction Matters);

"Revised Senior Debt Termination Amount"

has the meaning given in Section 6 (Definitions) of Schedule Part 17 (Compensation on Termination);

"Room Data Sheets"

has the meaning given in Section 6 (Room Data Sheets) of Schedule Part 6 (Construction Matters);

"Scottish Futures Trust"

means Scottish Futures Trust Limited (Company Number SC348382), having its registered office at 1st Floor, 11-15 Thistle Street, Edinburgh EH2 1DT;

"Schedule of Programmed Maintenance"

means the programme referred to in Clause 23.1 to be submitted to the Authority's Representative by Sub-hubco in accordance with Schedule Part 8 (Review Procedure);

"Second Party"

has the meaning given in Clause 35.3;

"Second Threshold Excess"

means the portion, if any, of a Proposed Distribution that would, if paid to the Investors on the Relevant Distribution Date, result in the Investor Return being in excess of the Second Whole Life Threshold Return;

"Second Whole Life Threshold Return"

means [to be inserted from PSDP's winning bid]% ;

"Security Trustee"

means [ ] ;

"Senior Debt"

has the meaning given in Section 6 (Definitions) of Schedule Part 17 (Compensation on Termination);

"Senior Debt Service Costs"

means interest and debt service costs incurred in respect of the [Senior Funding Agreements] less:

(a) sums which are in arrears;

(b) all sums reserved by Sub-hubco and which Sub-hubco is entitled to use to make such payments, without breaching the [Senior Funding Agreements];

"Senior Funders"

means [specify relevant funders];

"Senior Funding Agreements"

means [ ] as at the date of this Agreement and as amended as permitted under Clause 4 (Project Documents);

"Service Contracts"

means the contracts dated the same date as this Agreement between Sub-hubco and each Service Provider (which as at the date of this Agreement are in the Agreed Form), by which Sub-hubco will procure the performance of the Services (as amended or replaced from time to time in accordance with this Agreement);

"Service Event"

has the meaning given in Schedule Part 14 (Payment Mechanism);

"Service Level Specification"

means the requirements of the Authority set out in Section 1 (Service Level Specification) of Schedule Part 12 (Service Requirements) as amended from time to time in accordance with Clause 33 (Change Protocol);

"Service Provider"

means each of [insert description of Service Providers] or any other person engaged by Sub-hubco from time to time as may be permitted by this Agreement to procure the provision of the Services (or any part of them);

"Service Providers Collateral Agreements"

means the collateral agreements among the Authority, Sub-hubco and each Service Provider in the form set out in Section 2 of Schedule Part 9 (Collateral Agreements);

"Services"

means the services to be provided, managed and/or procured by Sub-hubco for the Authority in accordance with Schedule Part 12 (Service Requirements) as subsequently amended or adjusted in accordance with this Agreement;

"Services Quality Plan"

means the document set out in Section 3 (Services Quality Plan) of Schedule Part 12 (Service Requirements);

"Shareholder(s)"

means any person(s) who from time to time, as permitted by this Agreement, holds share capital in Sub-hubco or hubco which persons are, as at the date of this Agreement, listed as such in Schedule Part 21 (Sub-hubco Information) ;

"Shareholders Agreements"

means the agreement or agreements between the Shareholders relating to Sub-hubco, including any agreement relating to the subscription of equity (or other shareholder funding) by the Shareholders in Sub-hubco [or hubco];

"Site"

means the land made available to Sub-hubco for the Project outlined in red on [insert details of relevant plan];

"Site Conditions"

means the condition of the Site including (but not limited to) climatic, hydrological, hydrogeological, ecological, environmental, geotechnical and archaeological conditions;

"Snagging Matters"

means minor items of outstanding work (including in relation to landscaping) which would not materially impair the Authority's use and enjoyment of the Facilities or the carrying out by the Authority or a Community Services Provider of the Community Services or the performance of the Services by Sub-hubco;

"Snagging Notice"

means the notice to be issued by the Independent Tester in accordance with Clause 17.14;

"Specific Change in Law"

means any Change in Law which specifically refers to:

(a) the provision of works or services the same as or similar to the Works or the Services in premises similar to the Facilities; or

(b) the holding of shares in companies whose main business is providing works or services the same as or similar to the Works or the Services in premises similar to the Facilities;

"SRS Timetable"

has the meaning given in Clause 23.16;

"Sub-Contractor"

means any third party (including the Contractor and a Services Provider) who enters into any Sub-Contract;

"Sub-Contracts"

means the contracts entered into by or between Sub-hubco, the Contractor and/or a Service Provider and other third parties in relation to any aspect of the Project Operations;

"Sub-hubco Event of Default"

has the meaning given in Clause 40 (Sub-hubco Events of Default);

"Sub-hubco-Party"

means Sub-hubco's agents and contractors (including without limitation the Contractor and the Service Providers) and its or their sub-contractors of any tier and its or their directors, officers, employees and workmen in relation to the Project. "Sub-hubco Parties" shall be construed accordingly;

"Sub-hubco's Post-Completion Commissioning"

means Sub-hubco's commissioning activities carried out in accordance with Clause 18.1;

"Sub-hubco's Pre-Completion Commissioning"

means Sub-hubco's commissioning activities carried out in accordance with Clause 17 (Pre -Completion Commissioning and Completion);

"Sub-hubco's Proposals"

means the document at Section 4 (Sub-hubco's Proposals) of Schedule Part 6 (Construction Matters) as amended from time to time in accordance with Clause 33 (Change Protocol);

"Sub-hubco's Remedial Services"

means any activities to be performed by or on behalf of Sub-hubco pursuant to its rights under Clause 23.15;

"Sub-hubco's Representative"

means the person appointed by Sub-hubco pursuant to Clause 8 (Representatives);

"Subordinated Debt"

has the meaning given in Section 6 (Definitions) of Schedule Part 17 (Compensation on Termination);

"Subordinated Funder"

means, in the context of the provisions of Clause 36 (IRR Sharing and Cap), any party providing Relevant Debt, and otherwise has the meaning given in Schedule Part 23 (Refinancing);

"Subsidiary"

has the meaning given to it in section 1159 of the Companies Act 2006;

"Suitable Substitute Contractor"

has the meaning given in Section 6 (Definitions) of Schedule Part 17 (Compensation on Termination);

"Termination Date"

means the date on which termination of this Agreement takes effect in accordance with its terms;

["The NHS and You"

means the document so-entitled and issued by the Scottish Government Health Directorate in January 2009;]

"Title Conditions"

means title conditions set out in Section 1 of Schedule Part 5 (Land Matters);

"TPL Risk"

means a risk which is required to be insured under the third party liability insurance policy;

"Transfer Regulations"

means the Transfer of Undertaking (Protection of Employment) Regulations 2006 (SI No. 246) ;

["Transfer Value"

means the sum of money payable by the Transferor Scheme to the Transferee Scheme in connection with a Bulk Transfer in consideration of which the Transferee Scheme agrees to assume the liability to provide pensions benefits to the Pensionable Authority Employee in place of the Transferor Scheme;]

["Transferee Scheme"

means a pension scheme of which a Pensionable Authority Employee becomes a member following the transfer of his or her employment pursuant to this Agreement on a Relevant Service Transfer Date or at any other time during the course of, or on the expiry or earlier termination of, this Agreement, where such transfer of employment takes place in connection with and as a consequence of the transfer of responsibility for provision of services to a new Service Provider or to the Authority;]

["Transferor Scheme"

means a pension scheme of which a Pensionable Authority Employee was a member prior to the transfer of his or her employment pursuant to this Agreement on a Relevant Service Transfer Date or at any other time during the course of, or on the expiry or earlier termination of, this Agreement where such transfer of employment takes place in connection with and as a consequence of the transfer of responsibility for provision of services to a new Service Provider or to the Authority;]

["Transferring Authority Employee"

means any Authority Employee who transfers under an Employee Transfer in accordance with this Agreement;]

["Transferring Employees"

means any Transferring Authority Employee and/or any Transferring Private Sector Employee;]

["Transferring Private Sector Employee"

means in relation to a service equivalent to a Service, any person employed by any sub-contractor engaged by the Authority who is wholly or mainly engaged in the provision of that service as at the Relevant Service Transfer Date and who will become an employee of Sub-hubco or a Service Provider on the Relevant Service Transfer Date in accordance with the provisions of Clause 25 (TUPE and Employment Matters);]

"Unavoidable Fixed Costs"

means the fixed costs incurred by Sub-hubco which first fall due for payment by Sub-hubco during the period of indemnity but excluding:

(a) costs which could have reasonably been mitigated or avoided by Sub-hubco;

(b) payments to Sub-hubco's Associated Companies;

(c) payments which are not entirely at arm's length;

(d) payments to holders of equity in Sub-hubco, providers of Subordinated Debt and any other financing costs other than Senior Debt Service Costs

(e) indirect losses suffered or allegedly suffered by any person;

(f) fines, penalties or damages for unlawful acts, breaches of contract or other legal obligations;

(g) payments Sub-hubco can recover under contract or in respect of which Sub-hubco has a remedy against another person in respect of the same liability;

(h) payments to the extent that Sub-hubco has available to it including:

(i) reserves which Sub-hubco can draw upon without breaching the Senior Funding Agreements;

(ii) standby or contingent facilities or funds of Senior Debt or equity which Sub-hubco is entitled to have available;

(i) payments representing any profits of the Project (to the extent not already excluded in (e) above) ;

"Uninsurable"

means, in relation to a risk, either that:

(j) insurance is not available to Sub-hubco in respect of the Project in the worldwide insurance market with reputable insurers of good standing in respect of that risk; or

(k) the insurance premium payable for insuring that risk is at such a level that the risk is not generally being insured against in the worldwide insurance market with reputable insurers of good standing by contractors in the United Kingdom;

"Unprogrammed Maintenance Work"

has the meaning given in Clause 23.8;

"Unreasonable Act"

means any act or omission which is contrary to any reasonable instruction, guidance or rules for the operation or management of the Facilities;

"Utilities"

has the meaning given in the Service Level Specification;

"VAT"

means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act 1994;

"VAT Sum"

has the meaning given in Clause 35 (VAT and Construction Industry Tax Deduction Scheme);

"Vitiating Act"

has the meaning given in Endorsement 2, Section 3 (Endorsement) of Schedule Part 15 (Insurance Requirements);

"Warning Notice"

means a notice validly served by the Authority's Representative on Sub-hubco under Clause 24.3 (Warning Notices), specifying that it is a Warning Notice and setting out the circumstances that have given rise to the issue thereof;

["Whitley Agreements"

means (1) National Health Service Maintenance Staff Pay and Conditions of Service; (2) Whitley Councils for the Health Service (Great Britain) Ancillary Staffs Council - Rates of Pay, Conditions of Service and General Information; (3) Whitley Councils for the Health Services (Great Britain) Administrative and Clerical Staff Council - Pay and Conditions of Service (subject in the case of senior managers to the Secretary of State's Direction dated 27 January 1989); (4) Whitley Councils for the Health Service (Great Britain) General Council Conditions of Service; and (5) Whitley Councils for the Health Service (Great Britain) Professional and Technical Staffs B Council and any agreements derived from a process of national collective bargaining which shall replace any of them;]

"Works"

means the design (including the preparation of all Design Data), construction, testing, commissioning and completion of the Facilities (including any temporary works) [and the installation of [Equipment]] to be performed by Sub-hubco in accordance with this Agreement (as varied, amended or supplemented from time to time in accordance with this Agreement).