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Exhibit 10.62

 

Maintenance Terms and Conditions

 

All Aboard Florida - Operations LLC

 

and

 

Siemens Industry, Inc.

 

DECEMBER 31, 2014

 

CONTENTS SECTION PAGE

 

1.	DEFINITIONS AND INTERPRETATION	4
2.	TERM	17
3.	REPRESENTATIONS AND WARRANTIES	17
4.	RELATIONSHIP WITH THE OPERATOR AND REPRESENTATIVES	20
5.	THE SERVICES	21
6.	PLANS AND MANUALS	29
7.	TECHNICAL RECORDS	32
8.	CHANGES	33
9.	SPARE PARTS AND SPECIAL TOOLS	35
10.	PERFORMANCE REGIME	39
11.	SHARING OF COST REDUCTIONS	40
12.	PAYMENTS FROM THE OWNER TO THE MAINTAINER	41
13.	INSPECTION AND TESTING	42
14.	WARRANTIES	43
15.	OWNER’S OBLIGATIONS	44
16.	OWNER’S TERMINATION RIGHTS	45
17.	CONSEQUENCES OF OWNER TERMINATION	47
18.	OWNER EVENTS OF DEFAULT	48
19.	INSURANCE	49
20.	SOFTWARE UPDATES	49
21.	INDEMNITY	49
22.	LIMITATIONS OF LIABILITY	51
23.	FORCE MAJEURE	52
24.	MAINTAINER SHALL COMPLY WITH OWNER’S DISADVANTAGED AND SMALL BUSINESS ENTERPRISE PARTICIPATION POLICY	53
25.	PARTIES’ REPRESENTATIVES	53
26.	MISCELLANEOUS	53
27.	CONFIDENTIALITY OF INFORMATION	54
28.	CARGO PREFERENCE	55
29.	SUSPENSION AND DEBARMENT	56
30.	ENTIRE AGREEMENT	57
31.	NOTICES	57
32.	MAINTAINER TO INFORM ITSELF FULLY	57
33.	COSTS	58
34.	GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL	58
35.	DISPUTE RESOLUTION PROCEDURE	58
36.	SURVIVAL	59
37.	THIRD-PARTY BENEFICIARIES	59
38.	NO AGENCY	59
39.	ASSIGNMENT; SUBCONTRACTING	59
40.	SET OFF	60
41.	TIME IS OF THE ESSENCE	60
42.	NO RELIEF	60
43.	WAIVER	60
44.	AMENDMENTS	60
47.	PRESS RELEASES	60
48.	COUNTERPARTS	61
49.	SEVERABILITY	61
EXHIBIT 1		62
Train Maintenance Specification		62
EXHIBIT 2		70
Train Plan		70
EXHIBIT 3		72
Train Plan Parameters		72

 

EXHIBIT 4	73
Performance Regime	73
EXHIBIT 5	79
Service Payment	79
EXHIBIT 6	85
Redelivery Condition	85
EXHIBIT 7	87
Parties’ Representatives	87
EXHIBIT 8	91
Maintenance Facilities	92
EXHIBIT 9	92
Template Fault Notification Procedure	92
EXHIBIT 10	95
Price Adjustment Formula	95
EXHIBIT 11	96
Insurance	96
EXHIBIT 12	100
Change Notice	100
EXHIBIT 13	101
Disadvantaged and Small Business Enterprise Participation Program	101
Exhibit 14	123
Form of Right of Access	123

THIS MAINTENANCE TERMS AND CONDITIONS AGREEMENT (THE “AGREEMENT” OR “MTC”) IS ENTERED INTO AS OF THIS 31 DAY OF DECEMBER 2014 (THE “EFFECTIVE DATE”)

 

BETWEEN:

 

(1)	ALL ABOARD FLORIDA - OPERATIONS LLC, a Delaware limited liability company (the “Owner”); and

 

(2)	SIEMENS INDUSTRY, INC., a Delaware corporation (the “Maintainer”).

 

WHEREAS:

 

(A)	The Maintainer and the Owner (each as defined above) have entered into a Vehicle Terms and Conditions Agreement dated August 15, 2014 for the manufacture and supply of the Trains and the Supplied Equipment (the “VTC”).

 

(B)	The Maintainer and the Owner have agreed that the Maintainer shall maintain the Trains and Supplied Equipment manufactured and supplied under the VTC in accordance with the terms of this Agreement.

 

IT IS AGREED:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1          Definitions

 

In this Agreement (including the recitals) unless the context otherwise requires, the following words and expressions shall have the respective meanings set forth below:

 

“AAF Services” means the passenger train services to be operated on the Owner Network as set out in the Train Plan from time to time;

 

“Additional Equipment” means Additional Spare Parts and any other parts or equipment purchased by the Maintainer to perform its Services;

 

 

“Additional Service Payments” means the payments to be made by the Owner to the Maintainer with respect to the provision of the Additional Services as set out in Part 3 of Exhibit 5 (Service Payments);

 

“Additional Services” means the services, work and activities, details of which are set out in Part 2 of Exhibit 1 (Train Maintenance Specification);

 

“Additional Services Regime” means the regime for the Additional Services set out in Part 2 of Exhibit 1 (Train Maintenance Specification);

 

“Additional Train” means an additional Train to be operated on any day by the Owner or the Operator in addition to the Trains provided for in the relevant Train Plan;

 

“Applicable Laws and Regulations” means all or any:

 

(a)

federal, state, local or municipal statute, law, code, regulation, ordinance, or rule; and

(b)

mandatory regulations, rules or directives of any Governmental Authority or industry body (e.g., the Association of American Railroads) only to the extent such industry body is authorized by a Governmental Agency or is delegated rulemaking authority by a Governmental Agency,

 

at any time in force and which are or may govern the parties’ obligations, performance and Services provided under this Agreement;

 

“Approved Party” has the meaning given to such term in Section 4.1.2;

 

“Break Option” means the exercise of the Owner’s right to terminate this Agreement pursuant to Section 2.2;

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, New York City;

 

“Change” means an amendment (whether by addition, amendment, substitution, omission or otherwise) of whatever nature to this Agreement, including to:

 

(a)

the Train Maintenance Specification;

 

(b)

the Plans; and

 

(c)

any of the obligations of the Maintainer or the Owner under this Agreement;

 

“Change in Law” means:

 

(a)

the application to any person of any Applicable Laws and Regulations which did not apply to them on the date of this Agreement;

 

(b)

any change to Applicable Laws and Regulations; or

 

any change in the application or interpretation of Applicable Laws and Regulations by a Governmental Authority including a Mandatory Modification;

 

“Change Notice” means a written proposal made by the Owner or the Maintainer to amend this Agreement in accordance with Section 8;

 

“Change of Control” means the direct or indirect acquisition of Control of a party at such time by a person or group of persons acting jointly or in concert who, immediately before such time, did not directly or indirectly Control such first-mentioned party;

 

“Condemnation” means requisition of title to, or other compulsory acquisition, requisition, appropriation, expropriation, deprivation or confiscation for any reason by any Governmental Authority but shall exclude requisition for use or hire not involving requisition of title;

 

“Conditional Acceptance” means the conditional acceptance of a Train by the Owner in accordance with Section 8.2 of the VTC, evidenced by the Owner’s signature of a Conditional Acceptance Certificate or by the Owner placing the Train or Vehicle in Passenger Revenue Service;

 

“Contract Documents” means:

 

(a)

this Agreement; and

 

(b)

all Change Notices;

“Contractor” means Siemens Industry, Inc. in its capacity as the “Contractor” under the VTC.

 

“Contractor Software” means software provided by the Contractor that is proprietary to the Contractor and has been installed in or on a Train, Vehicle, Part or item of Supplied Equipment.

 

“Delivery” means:

 

(c)

the delivery by the Contractor of a Train or Vehicle to the applicable Maintenance Facility or such other suitable location as the parties may agree upon and completion of the joint inspection by the Owner and the Contractor under Section 8.11 of the VTC; or

 

(d)

the delivery of the Supplied Equipment to the Owner under Sections 8.5 and 8.6 of the VTC;

 

“Delivery Documentation” means all relevant design plans for the Trains, the History Book, the Plans, the draft Operations and Maintenance Manuals, changes to documentation as a result of any Changes applied to the Trains, or Service Bulletins;

 

“Discloser” shall have the meaning given to it in Section 27.1;

 

“Discriminatory Change in Law” means a Change in Law the terms of which apply to:

 

(a)

any professional maintainer of rolling stock in relation its provision of rolling stock maintenance services in the United States (but not a Change in Law that applies more generally to other businesses, companies, suppliers and/or manufacturers, including to entities not involved in rolling stock (e.g., changes to federal minimum wage requirements)); or

 

(b)

the Maintainer as a result of federal law requirements placed on the Owner in connection with the FRA, including RRIF loans;

 

(c)

require an amendment to the Train Technical Specification which, either alone or when combined with previous such amendments, costs the Maintainer $75,000 or more,

 

other than those Changes in Law that were known to the Maintainer as of the date of this Agreement or should have been known to the Maintainer as of such date as a prudent and experienced professional maintainer of rolling stock;

 

“Disqualified Entity” means any person:

 

(a)

that (i) for purposes of the Owner, is or becomes an owner of a passenger railroad in the United States and (ii) for purposes of the Maintainer, is a competitor of the Maintainer in the provision of rolling stock maintenance services in the United States;

 

(b)

named on the list of “Specially Designated Nationals and Blocked Persons” maintained by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time;

 

(c)

that is (i) an agency of the government of a country, (ii) an organization controlled by a country, or (iii) a person resident in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person;

(d)

that is currently the subject of any such sanctions or in violation of any such sanctions, nor is located, organized or resident in a country or territory which itself is subject to any such sanction; or

 

(e)

that has made any payment, directly or indirectly, to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”);

 

“Effective Date” has the meaning given to it in the Preamble of this Agreement;

 

“Entry Point” means, with respect to a Train, the place where such Train is to be delivered by the Maintainer to the Owner as set out in the Train Plan and in accordance with the Hand-Over Procedure;

 

“Entry Time” means, with respect to a Train, the time set out in the Train Plan when such Train is scheduled to be delivered to the Owner in accordance with the Hand-Over Procedure at the Entry Point;

 

“Environmental Damage” means any injury or damage to persons (including material offence to an individual’s senses), living organisms or property or any material pollution or impairment of the environment resulting from the discharge, emission, escape or migration of any substance, energy, noise or vibration;

 

“Environmental Laws” means any Applicable Laws and Regulations, whether now existing or subsequently enacted or amended, relating to (a) pollution or protection of the environment, including natural resources, (b) exposure of persons, including but not limited to employees, to Hazardous Materials, (c) protection of the public health or welfare from the effects of products, by-products, wastes, emissions, discharges or releases of Hazardous Materials or (d) regulation of the manufacture, use or introduction into commerce of Hazardous Materials including their manufacture, formulation, packaging, labeling, distribution, transportation, handling, storage or disposal. Without limitation, “Environmental Law” shall also include any interpretation or ruling of any authorized Governmental Authority which has the authority and power to interpret or rule on any Environmental Law;

 

“Environmental Losses” means any losses suffered or reasonably incurred by a person with respect to (i) any liability under Environmental Laws and (ii) any reasonable action taken by such person to prevent, reduce, limit or mitigate any Environmental Liability (excluding insurance);

 

“Escrow Agent” means Escrow Associates or any other agent as may be agreed by the Parties.

 

“Excusing Cause” shall have the meaning given to it in Section 5.3.1;

 

“Exit Point” means, with respect to a Train, the place where such Train comes out of traffic in accordance with the Train Plan;

 

“Exit Time” means, with respect to a Train, the time set out in the Train Plain at which such Train is scheduled to come out of service and be delivered to the Maintainer in accordance with the Hand-Back Procedure at an Exit Point;

 

“Fault” means non-compliance with the Train Plan, Maintenance Plan or Operation and Maintenance Manuals that causes a Train, Vehicle, Part, item of Supplied Equipment or  Additional Equipment to fail to comply with the Train Technical Specifications whether the result of Maintainer Fault, Operator Fault or other causes;

“Fault Notification Procedure” means the fault notification procedure produced by the Maintainer based on the form set out in Exhibit 9 (Template Fault Notification Procedure) and agreed with the Owner in accordance with Section 5.6;

 

“Fit for Purpose” means:

 

(a)

in relation to each Train:

 

(i)

the Train complies with all Applicable Laws and Regulations; and

 

(ii)

such Train meets the Train Technical Specification and can operate in Passenger Revenue Service;

 

(b)

in relation to each Spare Part or any Key Component, that such Spare Part or any Key Component, if incorporated into a Train, would not of itself prevent such Train from being Fit for Purpose as defined in (a) above; and

 

in relation to a Special Tool, that such Special Tool is able to perform to its specification in accordance with the Operation and Maintenance Manual;

 

“Force Majeure Event” means the occurrence of any of the following events, in each case to the extent beyond the reasonable control of a party (such party known herein as the “excused party”):

 

(e)

acts of war (whether declared or undeclared), civil disturbance, invasion, armed conflict, terrorism, rebellion, revolution, riot, insurrection, sabotage, civil commotion, violent act of foreign enemy, or other hostilities;

 

(f)

acts of God, flood, fire, storm, earthquake, wind, hurricanes, tornadoes, volcanic eruption, landslide or other natural disaster or severe weather;

 

(g)

embargo or trade sanctions;

 

(h)

explosions, radioactive or chemical contamination or ionizing radiation or electromagnetic pulse or biological contamination;

 

(i)

strikes or industrial action or other failures of normal sources of supply;

 

(j)

a legally imposed quarantine;

 

(k)

vandalism, theft, or other criminal activities by third parties;

 

(l)

major delays that continue for a duration longer than three (3) consecutive days or accidents occurring in connection with transportation of single-sourced supplies or the Trains;

 

(m)

failures in communication lines, or power or other utility failures that continue for a duration longer than twenty four (24) hours; or

 

(n)

delays that continue for a duration longer than fifteen (15) consecutive days in providing licenses, clearances, approvals or permits by Governmental Authorities;

 

where failure to perform is not caused by the negligence or intentional misconduct of the excused party, and the excused party has exercised all reasonable efforts to avoid or remedy such force majeure event;

“Governmental Authority” means any federal, state or local government, any political subdivision thereof or any federal, state or local governmental agency, department, or other authority or organization or other similar entity which has been authorized or delegated rule-making power by any federal, state or local governmental body or whose directions, instructions, rulings, have the legal effect of laws or regulations of the federal, state or local government and are directly enforceable against a party in connection with the performance of this Agreement, or any other entity which has the appropriate legal authority for the granting of a Relevant Approval in each case to the extent acting in its capacity as a relevant authority under Applicable Laws and Regulations;

 

“Hand-Back” means the formal handing back of a Train at the Exit Point by the Owner or Operator to the Maintainer in accordance with the Hand-Back Procedure for the Services to be performed on that Train prepared by the Maintainer and agreed with the Owner in accordance with Section 5.5;

 

“Hand-Back Procedure” means the procedure for the Hand-Back of Trains prepared by the Maintainer and agreed with the Owner in accordance with Section 5.5;

 

“Hand-Over” means the formal handing over of a Train at the Entry Point by the Maintainer to the Owner or Operator in accordance with the Hand-Over Procedure in accordance with Section 5.5;

 

“Hand-Over Procedure” means the procedure for Hand-Over of Trains prepared by the Maintainer and agreed with the Owner in accordance with Section 5.5;

 

 

“History Book” means the history book for each Vehicle which shall contain the following information:

 

(a)

certified weight;

 

(b)

list of serially numbered apparatus;

 

(c)

list of equipment configurations, adjustment points and initial settings;

 

(d)

description of modification and completion dates of incorporation;

 

(e)

list of defects noted and the disposition of each;

 

(f)

list of non-conformances;

 

(g)

provision for recording malfunctions, inspection, servicing, and major overhaul;

 

(h)

summary and records of each vehicle pre-delivery and commissioning test;

 

(i)

record of certifications for certifiable items;

 

(j)

list of outstanding tests, modifications and defects; and

(k)

list of repairs;

 

“IFRS” means International Financial Reporting Standards in effect and applicable to that accounting period with respect to which reference to INFRS is being made;

 

“Information” shall have the meaning given to it Section 27;

 

“Insolvency Event” means:

 

(a)

an involuntary proceeding has been commenced or an involuntary petition has been filed, and either the proceeding or petition continues undismissed for sixty (60) days seeking (i) liquidation, reorganization or other relief of such party under any insolvency law or (ii) the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official for such party or for a substantial part of such party’s assets; or

 

(b)

A party (i) applies for or consents to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator or similar official for such party or for a substantial part of such party’s assets, or (ii) is not paying its debts as they become due, unless such debts are the subject of a bona fide dispute, or (iii) makes a general assignment for the benefit of creditors, or (iv) consents to the institution of, or fails to consent in a timely and appropriate manner, to any proceeding or petition with respect to it as described in subsection (a) above, or (v) commences the voluntary proceeding under any insolvency law, or files a voluntary petition seeking liquidation, reorganization, an arrangement with creditors or order for relief under any insolvency law, or (vi) files and answer admitting the material allegations of the petition filed against it in any proceeding referred to in the four going subsections (i) through (v), inclusive, of this subsection (b) and in any case referred to in the foregoing subsections (i) through (v), such action has not been cured within twenty (20) days thereafter.

 

“Intellectual Property Rights” means all legal and/or equitable rights in or in relation to any and all patents (including applications), utility models, circuit layouts, rights in designs (registered and unregistered), copyrights (including moral rights), rights in inventions, solutions, know-how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character which may now or in the future exist in any part of the world;

 

“Journey” means a description of a railway service to be run by the Owner or Operator in a single direction as set forth in the Train Plan Parameters between the originating and terminating stations;

 

“Key Component” means the car body structure, truck frame and axles, traction motors, couplers and gearboxes.

 

“Liquidated Damages” means the payments to be made by the Maintainer to the Owner under the Performance Regime;

 

“Maintainer Event of Default” means any of the events set out in Section 16.1;

 

“Maintainer Fault” means any failure of the Maintainer (including its employees, agents and Subcontractors) to perform the Services in accordance with the Contract Documents or non-compliance with the Maintenance Plan by the Maintainer that causes a Train or Vehicle, Part, item of Supplied Equipment or Additional Equipment to fail to comply with the Train Technical Specifications;

“Maintainer Group” means the Maintainer and its ultimate holding company (if any) from time to time, and any company which is, from time to time, a Subsidiary of the Maintainer;

 

“Maintainer Termination Notice” shall have the meaning given to it in Section 18.1;

 

“Maintainer’s Representative” means the representative appointed by the Maintainer in accordance with Section 25.2 and Exhibit 7 (Parties’ Representatives);

 

“Maintainer Suspension Notice” has the meaning given to it in Section 18.6;

 

“Maintenance Facility” means the (i) the Phase 1 Maintenance Facility or (ii) the Phase 2 Maintenance Facility, as applicable, or any other reasonably equivalent facility provided by the Owner and “Maintenance Facilities” means, together, the (i) the Phase 1 Maintenance Facility and (ii) the Phase 2 Maintenance Facility, or any other reasonably equivalent facilities provided by the Owner;

 

“Maintenance Plan” means the maintenance plan specific to this Agreement produced by the Maintainer in accordance with Section 6.2 (Maintenance Plan);

 

“Maintenance Records” means the records to be compiled by the Maintainer and updated on a daily basis showing all maintenance and rectification carried out on Trains, Vehicles, Special Tools, Spare Parts and Parts in accordance with the Maintenance Plan, this Agreement and all Applicable Laws and Regulations;

 

“Mandatory Modification” means a Modification to the Services or Additional Spare Part under this Agreement which is required to be made under any Applicable Laws and Regulations or by any Governmental Authority, and which is carried out in accordance with Section 8;

 

“Minor Excusing Cause” shall have the meaning given to it in Section 5.3.3;

 

“Mobilization Spare Parts” means the spare parts purchased by Owner as identified in Phase 1 mobilization and those spare parts that are related to the Phase 2 ramp up as set forth in Part 4 of Exhibit 5.

 

“Modification” means any change, modification or addition to the Services including Mandatory Modifications;

 

“month” means a period beginning on a particular day in one calendar month and ending on the day prior to the numerically corresponding day in the next calendar month following that on which it started; provided that if there is no such numerically corresponding day in the next calendar month following that on which it started, it shall end on the last day in such next calendar month;

 

“Operation and Maintenance Manuals” means the documents which fully describe how the Vehicles, the Trains and any items of Supplied Equipment should be operated, serviced, maintained, repaired and overhauled, to be produced by the Contractor (in electronic format) and agreed with the Owner in accordance with Sections 12.6 and 12.9 of the VTC including the manuals set out in Part 2 of Exhibit 6 of the VTC and the manuals required by the Train Technical Specification (Exhibit 1 of the VTC).

 

“Operator” means the train operator as may be appointed by the Owner to run the AAF Services from time to time;

 

“Operator Fault” means an act or omission of the Operator (including its employees, agents and Subcontractors) or Operator’s failure to comply with the Operation and Maintenance Manual and the Train Plan that causes a Train, Vehicle, Part, item of Supplied Equipment or Additional Equipment to fail to comply with the Train Technical Specifications;

“Option Order” means an order for Option Trains and/or Option Spare Parts and/or Option Manuals as specified in the form set out in Part 3 of Exhibit 8 of the VTC;

 

“Option Services Payments” means the payments to be made by the Owner to the Maintainer with respect to the provision of the Option Services as set out in Exhibit 5 (Service Payments);

 

“Option Services” means the services, work and activities set out in Part 3 of Exhibit 1 (Train Maintenance Specification) to be carried out on the Option Trains by the Maintainer and shall include the Additional Services to the extent that the Owner notifies the Maintainer at any time pursuant to Part 2 of Exhibit 1 (Train Maintenance Specification) that it wishes the Maintainer to carry out any such Additional Services;

 

“Option Spare Part” means each additional Spare Part to be supplied by the Contractor pursuant to an Option Order under the VTC;

 

“Option Train” means each additional Train or Vehicle to be supplied by the Contractor pursuant to an Option Order under the VTC;

 

“Owner Group” means the Owner and its ultimate holding company (if any) from time to time, and any company which is, from time to time, a Subsidiary of the Owner;

 

“Owner Network” means:

 

(a)

for Phase 1 Trains only, the Miami-West Palm Beach railroad to be operated by the Owner or a member of the Owner Group; and

 

(b)

for Phase 2 Trains, the Miami-Orlando railroad to be operated by the Owner or a member of the Owner Group;

 

for Phase 1 Trains and Phase 2 Trains, signalling, way side equipment, communications systems, platform, tunnels and bridges;

 

“Owner’s Representative” shall have the meaning given to it in Exhibit 6 (Parties’ Representatives);

 

“Part” means any part, component (which may comprise a number of parts and including a Key Component), an assembly or sub-assembly supplied by the Maintainer which if so specified in the Train Technical Specification is incorporated in, or fixed to, or should have been fixed to, or is designated for incorporation in or fixing to any Train, Vehicle, Special Tool , Spare Part, or supplemental spare part, or any furnishing or equipment furnished with such Train, Vehicle, Special Tool, Spare Part or Mobilization Spare Part under this Agreement;

 

“Passenger Revenue Service” means a Journey made with fare-paying passengers.

 

“Performance Regime” means the Performance Regime set out in Exhibit 4 (Performance Regime);

 

“person” means any person (including the “Maintainer” and the “Owner”) and shall be construed as including references to an individual, firm, company, limited liability company, corporation, partnership, unincorporated association or body of persons or any Governmental Authority or any of its agencies;

 

“Phase 1 Maintenance Facility” means the maintenance facility to be completed by the Owner at the West Palm Beach Yard;

“Phase 1 Service Payments” means the payments to be made by the Owner to the Maintainer with respect to the provision of the Phase 1 Services as set out in Exhibit 5 (Service Payments);

 

“Phase 1 Services” means the Standard Services to be carried out on the Phase 1 Trains by the Maintainer and shall include the Additional Services to the extent that the Owner notifies the Maintainer at any time pursuant to Part 2 of Exhibit 1 (Train Maintenance Specification) that it wishes the Maintainer to carry out any such Additional Services;

 

“Phase 1 Spare Parts” means “Spare Parts” as listed in Appendix N to Exhibit 1 (Train Technical Specification) of the VTC in relation to the Phase 1 Trains;

 

“Phase 1 Supplied Equipment” means the Phase 1 Spare Parts and the Special Tools;

 

“Phase 1 Train” means the following Trains to be delivered in the Phase 1 Order in the consists identified in the Train Technical Specification (Exhibit 1) to the VTC:

 

(a)

10 locomotives;

 

(b)

10 economy class coaches (type 1);

 

(c)

5 economy class coaches (type 2-1); and

 

(d)

5 business class coaches (type 3-1),

 

the detailed specifications of which are set out in the Train Technical Specification;

 

“Phase 2 Maintenance Facility” means the maintenance facility to be completed by the Owner Phase maintenance facility to be constructed by the Owner at the Orlando International Airport;

 

“Phase 2 Notice” means the delivery of a notice by the Owner to the Contractor pursuant to the VTC;

 

“Phase 2 Service Payments” means the payments to be made by the Owner to the Maintainer with respect to the provision of the Phase 2 Services as set out in Exhibit 5 (Service Payments);

 

“Phase 2 Services” means the Standard Services to be carried out on the Phase 2 Trains by the Maintainer. Maintenance Services and shall include the Additional Services to the extent that the Owner notifies the Maintainer at any time pursuant to Part 2 of Exhibit 1 (Train Maintenance Specification) that it wishes the Maintainer to carry out any such Additional Services;

 

“Phase 2 Spare Parts” means each additional Spare Part to be supplied by the Contractor pursuant to the Phase 2 Order;

 

“Phase 2 Train” means each additional Train or Vehicle to be supplied by the Contractor pursuant to the Phase 2 Order;

 

“Plan to Cure” shall have the meaning given to it in Section 16.2.1(b)(i);

 

“Plans” means the Maintenance Plan, Quality Plan, Safety Plan and Train Plan and Train Preparation Procedure;

 

“Price Adjustment” means the upward or downward modification in price pursuant to Section 1.1.8 and Exhibit 10 (Price Adjustment Formula);

“Quality Plan” means the quality plan specific to this Agreement produced by the Maintainer and agreed with the Owner in accordance with Sections 6.3.1(a);

 

“Recipient” shall have the meaning given to it in Section 27.1;

 

“Redelivery Condition” means with respect to the Trains, Vehicles, any Parts or any items of Supplied Equipment that the same shall be in a condition which is consistent with Exhibit 6 (Redelivery Condition);

 

“Redesigned Part” shall have the meaning given to it in Section 9.4;

 

“Relevant Approval” means such consents, approvals, permissions, authorizations, acceptances, certifications, licenses, exemptions, permits, and/or letters of no objection issued by Governmental Authority as are required;

 

“Replaced Spare Part” shall have the meaning given to it in Section 9.4.3;

 

“Representative” means a representative appointed by the Maintainer or Owner, as the case may be, in accordance with Section 25.2;

 

“Revised Change Notice” shall have the meaning given to it in Section 8.6.1;

 

“Revenue Service Year” means the twelve (12) month period beginning on the date that Passenger Revenue Service commences with the operation of the first Train, and each twelve (12) month period thereafter.

 

“Safety Plan” means the safety plan specific to this Agreement produced by the Maintainer in accordance with Section 6.3.1(b) (Plans);

 

“Security Interest” means any right of ownership, mortgage, pledge, lien, charge, hypothecation, attachment, security interest, assignment by way of security or collateral assignment, financing statement under the enacted Uniform Commercial Code of any jurisdiction, filing of a mortgage or other instrument with the Surface Transportation Board of the United States Department of Transportation (or any successor agency thereto), right of possession, right of detention, right of set-off or other encumbrance or form of security arrangement;

 

“Service Payments” means the Phase 1 Service Payments, the Additional Service Payments and, if applicable, the Phase 2 Service Payments and Option Services Payments;

 

“Services” means the Phase 1 Services, the Phase 2 Services (if a Phase 2 Order is placed) and the Option Services (if an Option Order is placed);

 

“Software” means Contractor Software and Third-Party Software;

 

“Spare Part” means the Phase 1 Spare Parts, Phase 2 Spare Parts, Optional Spare Parts, and Additional Spare Parts;

 

“Special Tools” means “Specialized Tools” as listed in Appendix N to Exhibit 1 (Train Technical Specification);

 

“Standard Services” means the services, work and activities set out in Part 1 of Exhibit 1 (Train Maintenance Specification) during Phase 1 and Phase 2 (if the Phase 2 Trains are ordered pursuant to a Phase 2 Notice);

 

“Sub-Contract” means any contract awarded or to be awarded by the Maintainer in relation to or connected with the carrying out of its obligations under this Agreement and any sub-contract of any tier;

“Sub-Contractor” means any person with whom the Maintainer has entered into a Sub-Contract and any sub-contractor of any tier. For the avoidance of doubt, Sub-Contractor does not include direct or indirect sourcing suppliers of the Maintainer;

 

“Subsidiary” of a person means a corporation, partnership, joint venture, limited liability company or other business entity now or hereafter, directly or indirectly, owned or Controlled by, or owning or Controlling, or under common Control with one of the parties, but such corporation, company or other entity shall be deemed to be a Subsidiary only so long as such ownership or Control exists;

 

“Supplied Equipment” means the Phase 1 Supplied Equipment and, if ordered pursuant to Section 5, the Phase 2 Spare Parts and the Option Spare Parts;

 

“Suspension Period” has the meaning given to it in Section 18.6

 

“Technical Performance Reports” has the meaning given to it in Section 7.1.1;

 

“Term” has the meaning given to it in Section 2.1;

 

“Termination Notice” has the meaning given to it in Section 16.2.1;

 

“Third-Party Software” means software provided by the Contractor that is licensed from third-party suppliers and has been installed in or on a Train, Vehicle, Part or item of Supplied Equipment.

 

“Total Loss” means the actual, agreed, constructive, arranged or compromised total loss or destruction of any Vehicle, Train or Spare Part, or such Vehicle, Train or Spare Part being rendered permanently unfit for its intended and normal use or rendering repair impractical or uneconomic;

 

“Train” means the Phase 1 Trains and, if ordered pursuant to Section 5 of the VTC, the Phase 2 Trains and Option Trains;

 

“Train Maintenance Specification” or “TMS” means the specification set out in Exhibit 1 (Train Maintenance Specification);

 

“Train Plan” means the train plan attached hereto and incorporated by reference herein as Exhibit 2;

 

“Train Plan Parameters” shall have the meaning given to it in Exhibit 3 (Train Plan Parameters);

 

“Train Preparation Procedure” shall have the meaning given to it in Section 6.12;

 

“Train Technical Specification” means the specification set out in Exhibit (Train Technical Specification) of the VTC;

 

“Update” means software which fixes a defect in the Software necessary to maintain the same functionality and performance of such Software.

 

“USA Patriot Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001));

 

“Vehicle” means any coach or locomotive that forms part of a Phase 1 Train, a Phase 2 Train or part of any Phase 2 Order or Option Order under the VTC;

 

“VTC” has the meaning set forth in the Preamble of this Agreement;

“Warranty Period” means twelve (12) months.

 

1.2

Construction

 

In this Agreement, unless otherwise indicated:

 

1.2.1

the headings in this Agreement are only for convenience and shall not affect its interpretation;

 

1.2.2

the singular includes the plural and vice versa;

 

1.2.3

a reference to a Section or to an Exhibit shall be to a section of or, as the case may be, an exhibit, to this Agreement and references to this Agreement include its recitals and exhibits;

 

1.2.4

references to (or to any specified provision of) this Agreement or any other document shall be construed as references to this Agreement, that provision or that document as in force for the time being and as from time to time amended in accordance with the requirements of this Agreement;

 

1.2.5

references to a party or person shall include its legal representatives, successors, permitted transferees and permitted assignees;

 

1.2.6

references to a statute shall include any subordinate legislation made from time to time under it and shall be construed so as to refer to such statute as it is amended or modified from time to time;

 

1.2.7

the terms “include” or “including” are to be construed as meaning “including, without limitation”;

 

1.2.8

any amounts which are said to be “adjusted” or subject to “adjustment” shall, unless otherwise stated, be references to such amounts which are to be adjusted in accordance with the Price Adjustment Formula set forth in Exhibit 10 (Price Adjustment Formula).

 

1.3

Precedence

 

1.3.1

In the event of any inconsistency or discrepancy between the documents forming part of this Agreement, the following order of precedence shall apply:

 

(a)

this Agreement;

 

(b)

the Train Maintenance Specification;

 

(c)

the Performance Regime;

 

(d)

all other Exhibits to this Agreement.

 

1.4

Notification of errors and discrepancies

 

Each party agrees to notify the other party in writing immediately upon becoming aware of a discrepancy or error within the Sections of this Agreement, between the Sections and the Exhibits, between the provisions of any Exhibit or within any Exhibit and, the parties shall discuss in good faith how to resolve such discrepancy or error.

2.

TERM

 

2.1

Duration

 

The Maintainer shall supply the Services in accordance with the terms of this Agreement from the Effective Date until the thirtieth (30^th) annual anniversary of the first date of Passenger Revenue Service (the “Term”).

 

2.2

Break Option

 

The Owner may terminate this Agreement as of the end of the fourteenth (14^th) Revenue Service Year without incurring any penalty for early termination provided it gives at least six (6) months’ notice in advance and in writing to the Maintainer (“Break Option”).

 

3.	REPRESENTATIONS AND WARRANTIES

 

3.1

Representation and Warranties

 

The Maintainer represents and warrants to the Owner that as of the date of this Agreement:

 

3.1.1

the Maintainer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware;

 

3.1.2

the Maintainer has the power to carry on its business as it is now being conducted and has all licenses, consents, approvals, permits, authorizations, exemptions and certifications required for that purpose and for the proposed activities under this Agreement;

 

3.1.3

the Maintainer is duly qualified to do business, and is in good standing, in the State of Florida and will remain in good standing throughout the duration of this Agreement and for as long thereafter as any obligations remain outstanding under this Agreement;

 

3.1.4

the Maintainer has the full power, right and authority to (i) execute, deliver and perform its obligations under this Agreement and the Contract Documents and (ii) carry out and consummate the transactions contemplated thereby;

 

3.1.5

the execution, delivery and performance by the Maintainer of this Agreement has been duly authorized by all necessary corporate and other action. Each person executing this Agreement on the Maintainer’s behalf has been duly authorized to execute and deliver the same on the Maintainer’s behalf and this Agreement has been duly executed and delivered by the Maintainer;

 

3.1.6

executing and delivering this Agreement and performing its obligations under this Agreement will not:

 

(a)

conflict with the terms of the Maintainer’s organizational documents;

(b)

conflict with or result in a breach of any existing contract or in the creation of any Security Interest over the Maintainer or any of its property; or

 

(c)

contravene any provision of any Applicable Law or Regulation binding on the Maintainer;

 

3.1.7

this Agreement constitutes the legal, valid and binding obligation of the Maintainer, enforceable against the Maintainer in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and general principles of equity;

 

3.1.8

there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Maintainer, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Maintainer or any of its Subsidiaries that either individually or in the aggregate would have a material adverse effect upon the Maintainer’s financial condition or business or its ability to perform its obligations under this Agreement;

 

3.1.9

the reviewed consolidated financial statements of the Maintainer have been prepared in accordance with International Financial Reporting Standards (IFRS) and present in all material respects a true and fair view of the financial condition of the Maintainer as of the dates the financial statements were prepared. To the best of Maintainer’s knowledge, having made all prudent inquiries as of the date of this Agreement, there has been no change in the financial condition of the Maintainer since the date of the reviewed financial statements that would have a material adverse effect upon the Maintainer’s ability to perform its obligations under this Agreement;

 

3.1.10

all written information supplied by the Maintainer, or any of its representatives or advisors, to the Owner in connection with this Agreement was true and accurate in all material respects both when given and on the date on which this representation is made and there are no other facts or matters the omission of which made any statement or information contained in the written information provided to Owner or to any of its representatives or advisors misleading in any material respect as of the relevant date of delivery thereof or the date on which this representation is made and all expressions of opinion contained therein were honestly made on reasonable grounds after due and careful enquiry;

 

3.1.11

none of the Maintainer Events of Default has happened and the Maintainer is not aware that a Maintainer Event of Default is likely to happen;

 

3.1.12

the Maintainer is in compliance with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (ii) the USA Patriot Act;

3.1.13

Neither the Maintainer nor, to the knowledge of the Maintainer, any director, officer, agent or employee thereof, is (i) a person or entity named on the list of “Specially Designated Nationals and Blocked Persons” maintained by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time or (ii) is (a) an agency of the government of a country, (b) an organization controlled by a country, or (c) a person resident in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person. No part of the proceeds of the payments made hereunder will, to the knowledge of the Maintainer, be used to finance any operations, investments or activities in, or make any payments to, any such country, agency, organization, or person; and

 

3.1.14

no part of the proceeds of the payments made hereunder to the knowledge of the Maintainer will be used, directly or indirectly, for any payments to any governmental official or employee thereof, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA.

 

The Maintainer acknowledges and agrees that the Owner is relying on the representations and warranties above and is entering into this Agreement on the basis of them.

 

3.2

Representations and Warranties by the Owner

 

The Owner represents and warrants to the Maintainer that as of the date of this Agreement:

 

3.2.1

the Owner is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware;

 

3.2.2

the Owner has the full power, right and authority to (i) execute, deliver and perform its obligations under this Agreement and the Contract Documents and (ii) carry out and consummate the transactions contemplated thereby;

 

3.2.3

the execution, delivery and performance by the Owner of this Agreement has been duly authorized by all necessary organizational and other action. Each person executing this Agreement on the Owner’s behalf has been duly authorized to execute and deliver the same on the Owner’s behalf and this Agreement has been duly executed and delivered by the Owner;

 

3.2.4

executing and delivering this Agreement and performing its obligations under this Agreement will not:

 

(a)

conflict with the terms of the Owner’s organizational documents;

(b)

conflict with or result in a breach of any existing contract to which the Owner is a party;

 

3.2.5

the Owner is a wholly-owned Subsidiary of AAF Holdings LLC;

 

3.2.6

this Agreement constitutes the legal, valid and binding obligation of the Owner, enforceable against the Owner in accordance with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting the enforceability of the rights of creditors generally and general principles of equity;

 

3.2.7

there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Owner, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Owner that either individually or in the aggregate would have a material adverse effect upon the Owner’s financial condition or business or its ability to perform its obligations under this Agreement.

 

The Owner acknowledges and agrees that the Maintainer is relying on the representations and warranties above and is entering into this Agreement on the basis of them.

 

4.	RELATIONSHIP WITH THE OPERATOR AND REPRESENTATIVES

 

4.1

Acknowledgement of the Owner’s right to sub-contract

 

4.1.1

The Maintainer acknowledges that the Owner may perform the AAF Services with its own personnel or the Owner may contract with an Operator to undertake the operation of the AAF Services. In the event that the Owner performs the AAF Services with its own personnel, the Owner will be deemed to be the Operator for purposes of this Agreement; and

 

4.1.2

The Maintainer acknowledges that, subject to Section 4.1.3, the Owner is entitled to, by notice in writing to the Maintainer:

 

(a)

sub-contract all or any of its obligations and functions under this Agreement to the Operator and/or any member of the Owner Group; and/or

 

(b)

appoint the Operator and/or any member of the Owner Group to exercise all or any of the Owner’s rights, powers and entitlements under this Agreement as agent for or representative of the Owner,

 

in each case the “Approved Party,” provided that the Owner shall retain full responsibility and liability (under, and subject to the terms and conditions (including limitations) of, this Agreement) for the acts and omissions of the Approved Party when carrying out any of the Owner’s rights, powers, obligations and responsibilities under this Agreement as if such acts and omissions were those of the Owner itself. The approval or decision of the Approved Party shall constitute an approval or decision of the Owner.

 

4.1.3

The Owner shall not be entitled to appoint an Operator to undertake on its behalf:

 

(a)

the Owner’s payment obligations under this Agreement;

 

(b)

the Owner’s rights and obligations in relation to Changes under this Agreement; or

(c)

the Owner’s right to terminate this Agreement.

 

4.2

Notification

 

The Maintainer may rely on the authority granted under a written notice served pursuant to Section 4.1.2 and such authority shall only lapse in accordance with the terms of the written notice or where otherwise notified in writing by the Owner.

 

4.3

Cooperation

 

4.3.1

The Maintainer shall cooperate in all respects with the Approved Party as if it were the Owner and at the request of the Owner shall provide to the Approved Party any assistance reasonably requested by the Approved Party to undertake any functions.

 

4.3.2

The Parties acknowledge that the Owner may provide any information or documents it receives in respect of or relating to this Agreement from the Maintainer or from any third party in relation to or on behalf of the Maintainer to the Approved Party to enable it to undertake its functions subject to the Approved Party’s agreement to a non-disclosure agreement between the Maintainer and the Approved Party. The Approved Party may only use such information or documents to perform the Owner’s duties under this Agreement.

 

4.4

Representatives

 

In carrying out or exercising any rights, duties and obligations under this Agreement or the other Contract Documents, the Owner shall always be entitled to consult the Approved Party and shall be entitled to bring a representative of the Approved Party to any meeting or discussion on any matter relating to this Agreement.

 

4.5

Definition of Operator

 

REFERENCES IN THIS CLAUSE TO THE “OPERATOR” SHALL BE DEEMED TO INCLUDE ANY AGENTS, SUB-CONTRACTORS OF ANY TIER, OFFICERS AND EMPLOYEES OF SUCH OPERATOR FROM TIME TO TIME SO LONG AS SUCH AGENTS OR SUB-CONTRACTORS ARE IDENTIFIED AS AGENTS OR SUB-CONTRACTORS OF THE OPERATOR AND THE OPERATOR AGREES TO BE RESPONSIBLE AND LIABLE FOR THE ACTS AND OMISSIONS OF THE AGENT OR SUB-CONTRACTOR.

 

5.	THE SERVICES

 

5.1

Service Provision

 

5.1.1

The Maintainer shall carry out the Services in relation to the Trains, Vehicles, Parts, Supplied Equipment and Additional Equipment, in accordance with all Applicable Laws and Regulations, any Relevant Approval applicable to the Maintainer’s maintenance of the Trains, the Train Plan, the Operation and Maintenance Manuals, the requirements of the Performance Regime, the Train Maintenance Specification, the Maintenance Plan, the Quality Plan and the Safety Plan and so as to ensure that the Trains, Vehicles, Parts and Supplied Equipment are in a condition which is consistent with Exhibit 6 (Redelivery Condition) and are Fit for Purpose at all times; and

 

5.1.2

The Maintainer agrees to commence on-site activities at the Phase 1 Maintenance Facility at least ninety (90) days prior to the Delivery of the first (1st) Train as provided for under the most recently updated Exhibit 4 (Delivery Schedule) of the VTC.

5.2

Standard of Performance

 

Throughout the Term the Maintainer shall in performing its obligations under this Agreement:

 

5.2.1

perform its obligations in accordance with all due skill, care, diligence, prudence and foresight to be expected of appropriately qualified and experienced professional maintainers of railway vehicles with experience in carrying out work of a similar scope, type, nature and complexity to that required from the Maintainer under this Agreement

 

5.2.2

comply in all respects with the standards or methods of performance detailed in the Train Maintenance Specification, the Train Plan, the Train Plan Parameters, the requirements of the Performance Regime, the Safety Plan, the Quality Plan, the Maintenance Plan, and the Operation and Maintenance Manuals,

 

5.2.3

perform its obligations in a safe manner and free from any material risk to the health and well-being of persons using, operating or maintaining, or involved in the management of the Trains;

 

5.2.4

without prejudice to the foregoing, exercise due skill, care, diligence and best safety practice in the performance of its obligations under this Agreement and not in any manner endanger the health and safety or unreasonably interfere with the proper performance of the duties of the Owner’s employees or those of any third parties;

 

5.2.5

provide personnel to carry out the Services that are competent in accordance with relevant industry standards and where appropriate have sufficient skill and competence to undertake safety critical work.

 

       5.3            Excusing Causes

 

5.3.1

Subject to Section 5.3.2, the Maintainer shall not be liable for any failure to carry out the Services or comply with the requirements of the Performance Regime or any other obligation under this Agreement to the extent that such failure has arisen as a result of an Excusing Cause (except to the extent that such Excusing Cause has arisen due to an act, omission, negligence or default of the Maintainer or any of its Sub-Contractors, agents or the employees or suppliers of any of the foregoing, or due to the Maintainer’s performance, non-performance or purported performance of its obligations under this Agreement (including in relation to the provision of Additional Services) or the VTC). If the Maintainer claims that an Excusing Cause has occurred, the Owner shall acting reasonably determine in accordance with this Section 5.3 whether or not such Excusing Cause has occurred and if so to what extent the Maintainer is relieved from carrying out the Services and/or complying with the requirements of the Performance Regime. The Excusing Causes are:

 

(a)

the total loss or destruction of such Train or any damage to such Train rendering repair of such Train impractical or uneconomic, or such Train being rendered permanently unfit for its intended use (except to the extent that such loss, destruction or damage is caused by a Maintainer Fault or the failure of the Maintainer to provide the Services);

 

 

(b)

a Train or Vehicle is not returned to the Maintainer in accordance with the Train Plan Parameters, the Hand-Back Procedure or the Hand-Over Procedure (except to the extent that such failure is caused by a Maintainer Fault or the failure of the Maintainer to provide the Services);

 

(c)

the occurrence of Fault other than a Maintainer Fault;

 

(d)

the occurrence of a material accident or act of non-isolated vandalism or a necessity of replacing an item due to cosmetic reasons;

 

(e)

subject to (c) above, loss or damage to a Vehicle or a Train has occurred, except to the extent that such Total Loss is caused by a Maintainer Fault, the failure of the Maintainer to provide the Services or any failure by the Maintainer to comply with the Exhibit 4 (Performance Regime);

 

(f)

condemnation, confiscation or seizure of a Train by a Governmental Authority;

 

(g)

defective infrastructure, railway environment or other defects in the Owner Network;

 

(h)

contamination of the Maintenance Facility from Hazardous Materials to the extent such contamination impedes the Maintainer’s ability to perform the Services (except to the extent that such contamination is caused by the Maintainer);

 

(i)

caused by the wilful misconduct of the Owner or a breach by the Owner of its obligations under the MTC; or

 

(j)

caused by a station closure.

 

5.3.2

The Maintainer shall use commercially reasonable efforts to mitigate the effect of any Excusing Cause and shall continue to perform the Services, and comply with the requirements of the Performance Regime for the unaffected Service, to the best of its ability following any Excusing Cause. As soon as the Maintainer believes or knows that any of the occurrences set out in Section 5.3.1 may occur or has occurred it will, as soon as reasonably practicable, notify the Owner of the same in writing.

 

5.3.3

If, in the opinion of the Maintainer, the Excusing Cause will result in the Maintainer being unable to carry out part of the Services in accordance with this Agreement or being unable to fully comply with the Performance Regime, the Maintainer shall give written notice as soon as reasonably practicable to the Owner’s Representative (to be substantially in the form set out in Part A of Appendix A to Exhibit 7 (Parties’ Representatives) a draft of which is to be prepared by the Maintainer and provided to the Owner for its reasonable approval no later than six (6) months before the first Train is scheduled to be tendered for Conditional Acceptance under the VTC) of the occurrence and the details of the measures which the Maintainer has adopted and/or proposes to adopt to avoid or reduce the effects of the Excusing Cause on its ability duly to comply with its obligations under this Agreement

5.3.4

If the Owner’s Representative acting reasonably believes that the Maintainer is entitled to treat the Excusing Cause as a reason not to carry out some or all of the Services and/or fully comply with the requirements of the Performance Regime, then, as soon as reasonably practicable, but no later than three (3) days after receipt of a full and detailed description pursuant to Section 5.3.3, the Owner’s Representative acting reasonably shall determine, grant and notify the Maintainer of the relevant relief by written notice (to be substantially in the form set out in Part B of Appendix A to Exhibit 7 (Parties’ Representatives) a draft of which is to be prepared by the Maintainer and provided to the Owner for its reasonable approval no later than six (6) months before the first Train is scheduled to be tendered for Conditional Acceptance under the VTC) and shall detail the extent to which the Maintainer is relieved from carrying out the Services and/or complying with the requirements of the Performance Regime and the time period for which such relief shall apply including an extension of time equal to the time the Representative has taken to respond.

 

5.3.5

If the Owner’s Representative decides that the Maintainer is not entitled to relief from its obligations to carry out the Services and/or comply with the requirements of the Performance Regime, the Owner’s Representative shall notify in writing the Maintainer as soon as reasonably practicable, but no later than three (3) days after receipt of a full and detailed description pursuant to Section 5.3.3 (to be substantially in the form set out in Part C of Appendix A to Exhibit 7 (Parties’ Representatives) a draft of which is to be prepared by the Maintainer and provided to the Owner no later than six (6) months before the first Train is scheduled to be tendered for Conditional Acceptance under the VTC). If the Maintainer does not agree with the determination of the Owner’s Representative, the parties agree that they will resolve the matter in accordance with Section 36 (Dispute Resolution).

 

5.3.6

Any relief given by the Owner’s Representative under this Section 5.3 shall not of itself entitle the Maintainer to relief for subsequent occurrences of Excusing Causes. The Maintainer must make a separate claim under this Section 5.3 for relief each time an Excusing Cause occurs or the Maintainer believes an Excusing Cause will occur.

 

5.3.7

Subject to Section 21, any relief granted by the Owner’s Representative to the Maintainer shall constitute full compensation and satisfaction for any loss sustained or sustainable by the Maintainer with respect to any matter in connection with which that relief is granted.

 

	All Aboard Florida - Operations LLC, as Owner
	By:	/s/ Kolleen Cobb
	Name:	Kolleen Cobb
	Title:	Vice President
	Siemens Industry, Inc., as Maintainer
	By:	/s/ Chris Maynard
	Name:	Chris Maynard
	Title:	Vice President, Customer Service
	By:	/s/ Michael Tyler
	Name:	Michael Tyler
	Title:	Senior Director, Finance and Business Administration