1  Interpretation

1.1  In this Agreement, unless the context otherwise requires:

"Accrued Rights"

has the meaning given to that term in Clause 10.8 (Authority Rights);

"Accrued Rights Value"

means each of the [Construction Accrued Rights Liquidated Damages Value, the Construction Accrued Rights Value, the FM Accrued Rights Lifecycle Works Value, the FM Accrued Rights Termination Value and the FM Accrued Rights Value]1

"Appointed Representative"

means a Representative that has assumed the Contractor's rights under the Project Agreement pursuant to Clause 5.1 (Representative);

"Authority Construction Collateral Warranty"

means the Collateral Warranty between (1) the Authority, (2) the Contractor and (3) the Building Contractor;

"Authority Construction Liability Cap"

means the Building Contractor's Liability Cap less the Construction Accrued Rights Value;

"Authority Construction Liquidated Damages Cap"

means the Building Contractor's Liquidated Damages Cap less the Construction Accrued Rights Liquidated Damages Value;

"Authority FM Collateral Warranty"

means the Collateral Warranty between (1) the Authority, (2) the Contractor and (3) the FM Contractor;

"Authority FM Liability Cap"

means the Services Provider Liability Cap for the Relevant Year less the FM Accrued Rights Value;

"Authority FM Life Cycle Works Cap"2

means the Life Cycle Works Cap less the FM Accrued Rights Life Cycle Works Value;

"Authority FM Termination Cap"

means the Services Provider Termination Cap less the FM Accrued Rights Termination Value;

"Authority Liability Cap"

means each of the Authority FM Liability Cap, the Authority FM Termination Cap, [the Life Cycle Works Cap,] or the Authority Construction Liability Cap [, or the Authority Construction Liquidated Damages Cap];

"Building Contract"

means the Building Contract as defined in the Project Agreement and/or any novation thereof pursuant to the Authority Construction Collateral Warranty;

["Building Contractor Default"

has the meaning given to it in the Building Contract3];

["Building Contractor's Liability Cap"

has the meaning given to it in the Building Contract4];

["Building Contractor's Liquidated Damages Cap"

has the meaning given to it in the Building Contract5];

"Construction Accrued Rights Liquidated Damages Value"

means the amounts that would count against the Building Contractor's Liquidated Damages Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under Clause 10.14 (Authority Rights), as the same may be adjusted in accordance with Clause 20 (Dispute Resolution);

"Construction Accrued Rights Value"

means the amounts that would count against the Building Contractor's Liability Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under Clause 10.14 (Authority Rights), as the same may be adjusted in accordance with Clause 20 (Dispute Resolution);

"Expert"

means an expert appointed pursuant to Clause 20 (Dispute Resolution) to determine a dispute relating to this Agreement;

["Final Statement"

has the meaning given to it in the Building Contract6];

"FM Accrued Rights Life Cycle Works Value"7

means the amount that would count against the Life Cycle Works Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under Clause 10.14 (Authority Rights), as the same may be adjusted in accordance with Clause 20 (Dispute Resolution);

"FM Accrued Rights Termination Value"

means the amounts that would count against the Services Provider Termination Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under Clause 10.14 (Authority Rights), as the same may be adjusted in accordance with Clause 20 (Dispute Resolution);

"FM Accrued Rights Value"

means the amount that would count against the Services Provider Liability Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under Clause 10.14 (Authority Rights), as the same may be adjusted in accordance with Clause 20 (Dispute Resolution);

"FM Agreement"

means the FM Agreement as defined in the Project Agreement and/or any novation thereof pursuant to the Authority FM Collateral Warranty;

["Interim Payment"

has the meaning given to it in the Building Contract8];

["Life Cycle Works Cap"

has the meaning given to it in the FM Agreement9];

["Monthly FM Payment"

has the meaning given to it in the FM Agreement10]

"Payment Mechanism"

means the payment mechanism set out in Schedule [15] to the Project Agreement;

"Project Agreement"

means the project agreement dated on or about the date of this Agreement between the Authority and the Contractor;

"Relevant Required Insurances" means the Required Insurances described in paragraph [2] of part 1 and paragraph [2] of part 2 of Schedule [14] (Insurances) of the Project Agreement11

"Relevant Sub-Contractor"

means a sub-contracting party to a Works/Services Contract;

"Relevant Year"

means the [Contract Year]12as defined in the FM Agreement) in which the Termination Date occurs;

"Representative"

means:

(a)  the Facility Agent, the Security Trustee, any Secured Finance Party and/or any of their Affiliates;

(b)  an administrator, administrative receiver, receiver or receiver and manager of the Contractor appointed under the Security Documents;

(c)  a person directly or indirectly owned or controlled by the Facility Agent, the Security Trustee, and/or any Secured Finance Party; or

(d)  any other person approved by the Authority (such approval not to be unreasonably withheld or delayed);

"Required Period"

means subject to Clause 4 (No Liquid Market) the period starting on the date of a Termination Notice and:

(a)  prior to and including the final Services Availability Date, ending one hundred and twenty (120) days after the date of the Termination Notice;

(b)  after the final Services Availability Date, ending ninety (90) days after the date of the Termination Notice; or

(c)  in either case, ending on such earlier date as the Facility Agent may specify by written notice to the Authority;

"Senior Debt Discharge Date"

means the date on which all amounts which may be or become owing by the Contractor to each Secured Finance Party under the Senior Financing Agreements have been irrevocably paid in full;

["Services Provider Default"

has the meaning given to it in the FM Agreement13]

["Services Provider Liability Cap"

has the meaning given to it in the FM Agreement14]

["Services Provider Termination Cap"

has the meaning given to it in the FM Agreement15]

"Step-In Date"

means the date on which the Facility Agent takes any action under Clause 5.1 (Representative);

"Step-In Period"

means the period from the Step-In Date up to and including the earlier of:

(a)  the date specified in a notice issued pursuant to Clause 7.1 (Step-Out);

(b)  the date of any transfer under Clause 8 (Novation);

(c)  the date of any termination for breach under Clause 6 (Step-in Period); and

(d)  the date of expiry of the Project Agreement;

"Step-Out Date"

has the meaning given to it in Clause 7.1 (Step-Out);

"Suitable Substitute Contractor"

means a person approved by the Authority (such approval not to be unreasonably withheld or delayed) as:

(a)  having the legal capacity, power and authority to become a party to and perform the obligations of the Contractor under the Project Agreement;

(b)  employing persons having the appropriate qualifications, experience and technical competence and having the resources available to it (including committed financial resources and sub-contracts) which are sufficient to enable it to perform the obligations of the Contractor under the Project Agreement; and

(c)  being a Suitable Third Party;

"Termination Notice"

means a notice given by the Authority to the Facility Agent under Clause 3.1 (Notice of Termination and Existing Liabilities);

"Unrestricted Assets"

means those Assets, excluding any revenues or cash balances or rights accrued as at the Termination Date (or, if earlier, the Expiry Date) under or pursuant to or in connection with any of the Relevant Required Insurances (but not other Required Insurances), any Works/Services Contract or any Project Document, which are required by the Authority or its nominee or any replacement of the Contractor for the purposes of the construction, operation or maintenance of the Stations following termination of the Project Agreement assuming such construction, operation or maintenance is carried out on terms substantially the same as the terms of the Project Agreement;

"Warning Notice"

means a formal warning notice served by the Authority under clause [42.1] (Warning Notice) of the Project Agreement;

"Works/Services Contract"

means a contract relating to the provision of Works or Services which is the subject of a Collateral Warranty.

1.2  The following terms have the meaning given to them in the Project Agreement16:

"Additional Permitted Borrowing"

"Adjusted Estimated Fair Value of the Contract"

"Affiliate"

"Assets"

"Building Contractor"

"Business Day"

"Certification Requirements"

"Collateral Warranty"

"Deductions"

"Distribution"

"Expiry Date"

"Final Warning Notice"

"FM Contractor"

"Holdco"

"Joint Insurance Account"

"Liquid Market"

"Physical Damage Policies"

"Project"

"Project Documents"

"Ratchet"

"Required Insurances"

"Senior Financing Agreements"

"Senior Lenders"

"Services"

"Services Availability Date"

"Services Period"

"Station"

"Suitable Third Party"

"Termination Date"

"Termination Sum"

"Unitary Charge"

"Works"

1.3  The following terms have the meaning given to them in the Senior Financing Agreements17:

["Direct Agreement"

"Event of Default"

"Lender"

"Proceeds Account"

"Secured Finance Party"

"Security Document"]

1.4  Interpretation

In this Agreement except where the context otherwise requires:

1.4.1  the masculine includes the feminine and vice-versa;

1.4.2  the singular includes the plural and vice-versa;

1.4.3  a reference to any clause, sub-clause, paragraph, schedule, recital or annex is, except where expressly stated to the contrary, a reference to such clause, sub-clause, paragraph, schedule, recital or annex of and to this Agreement;

1.4.4  save where stated to the contrary, any reference to this Agreement or to any other document shall include any permitted variation, amendment or supplement to such document;

1.4.5  any reference to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended, replaced, consolidated or re-enacted;

1.4.6  a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees;

1.4.7  headings are for convenience of reference only; and

1.4.8  words preceding "include", "includes", "including" and "included" shall be construed without limitation by the words which follow those words.

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1  This definition will need to be checked for consistency with the relevant sub-contract definitions.

2  This definition should be deleted if clause 10.5.4 is deleted.

3  This definition will need to be checked for consistency with the Building Contract definition.

4  This definition will need to be checked for consistency with the Building Contract definition.

5  This definition will need to be checked for consistency with the Building Contract definition

6  This definition will need to be checked for consistency with the Building Contract definition.

7  This definition should be deleted if clause 10.5.4 is deleted.

8  This definition will need to be checked for consistency with the Building Contract definition.

9  This definition will need to be checked for consistency with the FM Agreement definition.

10  This definition will need to be checked for consistency with the FM Agreement definition.

11  These are the Delay in Start Up and Business Interruption insurances.

12  This definition will need to be checked for consistency with the FM Agreement definition

13  This definition will need to be checked for consistency with the FM Agreement definition.

14  This definition will need to be checked for consistency with the FM Agreement definition.

15  This definition will need to be checked for consistency with the FM Agreement definition

16  This list will need to be reviewed against the defined terms in the Project Agreement.

17 This list will need to be reviewed against the defined terms in the Project Agreement.