36.2.6 As noted above, the definition of "Financing Agreements" should be amended to include reference to the Issuer and its Associated Companies alongside existing references to the Contractor.
36.2.7 The definition of Senior Financing Agreements must include the relevant bond documentation, alongside any other finance agreements. These may include the Bonds, the bond trust deed, the subscription agreement and any guaranteed investment contract, alongside the security documents, the collateral deed, intercreditor agreements, and any hedging documents. Where the bonds are "wrapped", the financial guarantee(s) and related guarantee and indemnity agreement should also be included. Each such document should be defined in the Contract.
36.2.8 The Prospectus is not usually included as it is not a contractual document. In addition the on-loan documents, under which the bond and other finance proceeds are passed from the Issuer to the Contractor, should generally not be included. If they are, care must be taken to ensure that no payments in respect of them are included in any termination payment.
36.2.9 Careful due diligence should be done by the Authority's financial and legal advisers to ensure that any fees or break costs are appropriate to be covered in the various (non-Contractor default) termination scenarios (and, if not, are carved out) and that there is no double counting between the various instruments (or coverage of costs other than those to the external finance market).
36.2.10 If preferred, the definition of "Senior Lender" could be extended specifically to include the relevant parties to the Senior Financing Agreements.