Standard Form Project Agreement

(hub DBFM Projects)

Version 2.1: October 2013

THIS STANDARD FORM PROJECT AGREEMENT MUST BE USED IN CONJUNCTION WITH THE STANDARD PROJECT AGREEMENTS USERS GUIDE (VERSION 2) PUBLISHED BY THE SCOTTISH FUTURES TRUST

AGREEMENT

between

[AUTHORITY]

and

[SUB-HUBCO]

[Project]

[Date]

.

1DEFINITIONS AND INTERPRETATION5

2EXECUTION AND DELIVERY OF DOCUMENTS5

3COMMENCEMENT AND DURATION5

4PROJECT DOCUMENTS5

5THE PROJECT OPERATIONS7

6GENERAL OBLIGATIONS AND RESPONSIBILITIES OF SUB-HUBCO8

7AUTHORITY'S DATA9

8REPRESENTATIVES10

9NATURE OF LAND INTERESTS12

10THE SITE13

11CONSENTS & PLANNING APPROVAL14

12THE DESIGN CONSTRUCTION AND COMMISSIONING PROCESS16

13RIGHT OF ACCESS OF AUTHORITY'S REPRESENTATIVE18

14PROGRAMME AND DATES FOR COMPLETION19

15INDEPENDENT TESTER20

16EQUIPMENT21

17PRE-COMPLETION COMMISSIONING AND COMPLETION21

18POST COMPLETION COMMISSIONING24

19FOSSILS AND ANTIQUITIES25

20QUALITY ASSURANCE27

21INFORMATION TECHNOLOGY29

22THE SERVICES30

23MAINTENANCE31

24MONITORING OF PERFORMANCE35

25TUPE AND EMPLOYMENT MATTERS38

26PENSIONS47

27SITE SECURITY AND PERSONNEL ISSUES48

28STOCKS CONSUMABLES, MATERIALS AND EQUIPMENT51

29DELAY EVENTS54

30RELIEF EVENTS57

31FORCE MAJEURE58

32CHANGES IN LAW61

33CHANGE PROTOCOL64

34PAYMENT65

35VAT AND CONSTRUCTION INDUSTRY TAX DEDUCTION SCHEME67

36IRR SHARING AND CAP70

37FINANCIAL MODEL71

38RECORDS AND OPEN BOOK ACCOUNTING72

39AUTHORITY EVENTS OF DEFAULT73

40SUB-HUBCO EVENT OF DEFAULT73

41TERMINATION RESULTING FROM FORCE MAJEURE77

42AUTHORITY VOLUNTARY TERMINATION77

43EXPIRY78

44CORRUPT GIFTS AND PAYMENTS78

45BREACH OF IRR SHARING AND CAP PROVISIONS80

46COMPENSATION ON TERMINATION81

47CONSEQUENCES OF TERMINATION83

48HANDBACK PROCEDURE86

49INDEMNITIES87

49AMALICIOUS DAMAGE90

50TAX ON INDEMNITY PAYMENTS90

51EXCUSING CAUSES92

52WARRANTIES94

53INSURANCE94

54EXCLUSIONS AND LIMITATIONS ON LIABILITY103

55INTELLECTUAL PROPERTY105

56DISPUTE RESOLUTION PROCEDURE106

57ASSIGNATION AND SUB-CONTRACTING106

58OWNERSHIP INFORMATION AND CHANGES IN CONTROL108

59MITIGATION109

60DATA PROTECTION109

61CONFIDENTIALITY110

62FREEDOM OF INFORMATION113

63INFORMATION AND AUDIT ACCESS114

64NOTICES115

65NO WAIVER116

66NO AGENCY116

67ENTIRE AGREEMENT116

68THIRD PARTY RIGHTS116

69SEVERABILITY117

70CONFLICTS OF AGREEMENTS117

71COSTS AND EXPENSES117

72FURTHER ASSURANCE117

73GOVERNING LAW AND JURISDICTION117

SCHEDULES

SCHEDULE PART 1 DEFINITIONS AND INTERPRETATION118

SCHEDULE PART 2 COMPLETION DOCUMENTS150

SCHEDULE PART 3 KEY WORKS PERSONNEL153

SCHEDULE PART 4 FUNDERS' DIRECT AGREEMENT154

SCHEDULE PART 5 LAND MATTERS168

SCHEDULE PART 6 CONSTRUCTION MATTERS170

SCHEDULE PART 7 THE PROGRAMME179

SCHEDULE PART 8 REVIEW PROCEDURE180

SCHEDULE PART 9 COLLATERAL AGREEMENTS191

SCHEDULE PART 10 OUTLINE COMMISSIONING PROGRAMME230

SCHEDULE PART 11 EQUIPMENT231

SCHEDULE PART 12 SERVICE REQUIREMENTS232

SCHEDULE PART 13 INDEPENDENT TESTER CONTRACT235

SCHEDULE PART 14 PAYMENT MECHANISM250

SCHEDULE PART 15 INSURANCE REQUIREMENTS266

SCHEDULE PART 16 CHANGE PROTOCOL284

SCHEDULE PART 17 COMPENSATION ON TERMINATION325

SCHEDULE PART 18 HANDBACK PROCEDURE339

SCHEDULE PART 19 RECORD PROVISIONS353

SCHEDULE PART 20 DISPUTE RESOLUTION PROCEDURE357

SCHEDULE PART 21 SUB-HUBCO INFORMATION363

SCHEDULE PART 21 CERTIFICATES365

SCHEDULE PART 23 REFINANCING369

SCHEDULE PART 24 EMPLOYMENT AND PENSIONS372

SCHEDULE PART 25 INSURANCE PROCEEDS ACCOUNT AGREEMENT382

SCHEDULE PART 25 COMMERCIALLY SENSITIVE INFORMATION390

TABLE OF CONTENTS

ClauseHeadingPage No.

iv

BETWEEN:

(1)[] (the "Authority"); and

(2)[ ] (registered under number [ ]) whose registered office is [ ] ("Sub-hubco").

WHEREAS:

[]

NOW IT IS HEREBY AGREED as follows:

PART 1: GENERAL

DEFINITIONS AND INTERPRETATION

Schedule Part 1 (Definitions and Interpretation) shall apply.

EXECUTION AND DELIVERY OF DOCUMENTS

On or prior to execution of this Agreement:

Sub-hubco shall deliver to the Authority the documents referred to in Section 1 (Documents to be delivered by Sub-hubco) of Schedule Part 2 (Completion Documents) (unless the requirement to deliver any such document is waived by the Authority by written notice to Sub-hubco); and

the Authority shall deliver to Sub-hubco the documents referred to in Section 2 (Documents to be delivered by the Authority) of Schedule Part 2 (Completion Documents) (unless the requirement to deliver any such document is waived by Sub-hubco by written notice to the Authority).

COMMENCEMENT AND DURATION

This Agreement, and the rights and obligations of the parties, shall commence on the date of execution of this Agreement and, without prejudice to Clause 47.6, shall terminate automatically on the expiry of the Project Term.

PROJECT DOCUMENTS

Ancillary Documents

Sub-hubco shall perform its obligations under, and observe all of the provisions of, the Project Documents to which it is a party and shall not:

terminate or agree to the termination of all or part of any Ancillary Document;

make or agree to any material variation of any Ancillary Document;

in any material respect depart from its obligations (or waive or allow to lapse any rights it may have in a material respect), or procure that others in any material respect depart from their obligations (or waive or allow to lapse any rights they may have in a material respect), under any Ancillary Document; or

enter into (or permit the entry into by any other person of) any agreement replacing all or part of (or otherwise materially and adversely affecting the interpretation of) any Ancillary Document,

unless the proposed course of action (and any relevant documentation) has been submitted to the Authority's Representative for review under Schedule Part 8 (Review Procedure) and either:

there has been no objection in accordance with paragraph 3 of Schedule Part 8 (Review Procedure) within twenty (20) Business Days of receipt by the Authority's Representative of the submission of the proposed course of action (and any relevant documentation), or such shorter period as may be agreed by the parties; or

Sub-hubco is acting in accordance with the comments of the Authority as provided in paragraph 4.2 of Schedule Part 8 (Review Procedure);

and, in the circumstances specified in Clause 4.1.1, Sub-hubco has complied with Clause 57 (Assignation and Sub-contracting).

Changes to Funding Agreements and Refinancing

Subject to Clauses 4.3, 4.4 and 4.5, Sub-hubco shall be free, at any time, to enter into, terminate, amend, waive its rights and generally deal with its Funding Agreements on such terms and conditions as it sees fit without the prior written consent of the Authority provided that (at the time such action is contemplated and effected) the same will not materially and adversely affect the ability of Sub-hubco to perform its obligations under the Project Documents or this Agreement.

No amendment, waiver or exercise of a right under any Funding Agreement or Ancillary Document shall have the effect of increasing the Authority's liabilities on early termination of this Agreement unless:

Sub-hubco has obtained the prior written consent of the Authority to such increased liability for the purposes of this Clause 4.3; or

it is a Permitted Borrowing.

Any amendment or variation of any Funding Agreements which constitutes a Refinancing shall be carried out in accordance with the provisions of Schedule Part 23 (Refinancing).

Without prejudice to Clause 4.2, Sub-hubco shall liaise with the Authority, and shall use all reasonable endeavours to provide the Authority with a copy of the relevant agreement in settled draft form, not less than ten (10) Business Days before it enters into any Funding Agreement (other than the Initial Funding Agreements).

Delivery

Without prejudice to the provisions of this Clause 4 (Project Documents), if at any time an amendment is made to any Project Document, or Sub-hubco enters into a new Project Document (or any agreement which affects the interpretation or application of any Project Document), Sub-hubco shall deliver to the Authority a conformed copy of each such amendment or agreement within ten (10) Business Days of the date of its execution or creation, certified as a true copy by an officer of Sub-hubco.

Funding Default

Sub-hubco shall promptly upon the occurrence of a [Funding Default] notify the Authority of such [Funding Default].

The Authority may, in circumstances referred to in Clause 4.7 above (regardless of whether the Senior Funders have exercised any enforcement or similar rights under the Senior Funding Agreements), require Sub-hubco to provide an [Interim Project Report] and to attend, and use all reasonable endeavours to ensure that the Senior Funders attend, such meetings as the Authority may convene to discuss s