"5 Year Maintenance Plan"

means the plan, to be prepared by or on behalf of Project Co, for any works for the maintenance or repair of the Facilities, including the renewal or replacement of plant or equipment as necessary, during each five year period for the duration of the Project Term, which shall be updated not later than [              ] Business Days prior to the commencement of each Contract Year

"Acquired Rights Directive"

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

"Actual Completion Date"

means the date on which the Works have been completed in accordance with this Agreement, as such date shall be stated in the Certificate of Practical Completion or, in the event of dispute, as such date may be determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure)

"Actual Liability"

has the meaning given in Clause 48.7(c)(i) (Compensation on Termination)

"Additional De Minimis Amount"

has the meaning given in Clause 39.6(a) (Changes in Law)

"Additional Permitted Borrowing"

means on any date, the amount equal to any amount of principal outstanding under the Senior Funders Agreements (as the same may from time to time be amended, whether or not with the approval of the Board) in excess of the amount of principal scheduled under the Senior Funders 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 10.4.3 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 Variation; or

(ii)  outstanding from time to time as a result of any drawing under the Senior Funders 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 Funders Agreements in respect of which the Board has agreed that its liabilities on a termination may be increased pursuant to Clause 4.3 (a)

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 Funders 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 (a)

"Adjusted Amount"

shall have the meaning given in Clause 36.15 (Unavailability of Terms) 

"Adverse Law"

means any Change in Law which would if passed into Law have the following effects, and any administrative act of the Government or any minister of the Crown, department, agency, regulator or other public body or official not amounting to a Change in Law but which has (or would, if made, have) the following effects:

(a)  remove, transfer to another party or otherwise have a material adverse effect upon the Board's legal capacity (or obligation) to perform any of its material obligations in relation to the Project which are material to the interests of Project Co and/or its Funders; or

(b)  amend or repeal (without re-enactment, consolidation or replacement by Law having an equivalent effect) the National Health Service (Residual Liabilities) Act 1996 or the [National Health Service (Private Finance) Act 1997]; 

provided that, 

(i)  in the circumstances referred to in paragraph (a), where a Change in Law would have the effect of transferring the legal capacity or obligation of the Board in relation to such material obligations to a new entity (a "Board Substitute"), the relevant Law shall not be an Adverse Law if:

(aa)  either:

(i)  the provisions of the National Health Service (Residual Liabilities) Act 1996 and the [National Health Service (Private Finance) Act 1997] (together the "Protective Legislation") apply to such Board Substitute in full (as applied to the Board as at the date of this Agreement); or

(ii)  the relevant Law has the same effect in relation to the Board Substitute as the Protective Legislation; and

(bb)  the relevant Law does not otherwise have any adverse material effect on the legal capacity or obligation of the Board Substitute which affects (or could reasonably be expected to affect) the Board Substitute's ability to perform any material obligations owed to Project Co and/or the Funders in relation to the Project which are material to the interests of Project Co and/or its Funders, when compared to the material obligations of the Board under this Agreement

"Allowable Expenses"

has the meaning given in Clause 39.7 (Change in Law)

"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

"Ancillary Documents"

means the Construction Contract, the Service Contracts and the Performance Guarantees [Board to consider if there are any other project significant documents], all as the same may be amended or replaced from time to time

"Ancillary Rights"

means such rights of passage over, access to and egress from the Site in the manner previously agreed with the Board as the same may be varied with the approval of the Board such approval not to be unreasonably withheld (but only insofar as these rights are vested in the Board and are capable of being assigned or granted by the Board to Project Co, whether as a result of any restriction in the Title Deeds or otherwise)

"APB Distribution"

means, for the period during which the Additional Permitted Borrowing subsists, an amount equal to the aggregate of all Distributions made during that period up to an amount equal to the principal of the Additional Permitted Borrowing on the first day of that period

"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 Board's Representative pursuant to the provisions of Clause 17.7 (Design, Construction and Commissioning Process) and Part 10 of the Schedule (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" Project Co has taken account of the Board's Representative's comments), as such item of Reviewable Design Data may be varied or amended from time to time in accordance with Part 22 of the Schedule (Variation Procedure)

"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 Project Co shall include [HoldCo and] each of the Shareholders, and the term "Associate" shall be interpreted accordingly

"Associated Entity"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Base Date"

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

"Base Senior Debt Amount"

has the meaning given in Section F of Part 23 of the Schedule (Compensation on Termination)

"Beneficiary"

has the meaning given in Clause 8.3 (Conduct of Claims) 

"Board Additional Works Enquiry"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Additional Works Item"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Additional Works Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Assets"

means the [insert details of Board existing premises/sites etc] and any other assets and equipment or other property used by, or on behalf of, the Board or any Board Party2

["Board Break Point Date"

means [                    ]]

"Board Employee"

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

"Board Events of Default"

has the meaning given in Clause 45.1 (Board Events of Default)

"Board Party"

means any of the Board's agents, contractors and subcontractors of any tier and its or their directors, officers and employees and/or other healthcare providers at the Facilities with the authority of the Board but excluding Project Co, any Project Co Party and statutory undertakers and utilities and "Board Parties" shall be construed accordingly

"Board Policies"

means, subject to Clause 32.7 (Exclusion of Board Policies), the policies of the Board set out in the document annexed to this Agreement as Attachment [  ] as amended from time to time

"Board Service Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Service Variation Enquiry"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Works Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board Works Variation Confirmation"

has the meaning given in Part 22 of the Schedule (Variation Procedure) 

"Board Works Variation Enquiry"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Board's Commissioning"

means the Board's pre-completion commissioning activities to be carried out by the Board in accordance with Clause 22 (Pre-Completion Commissioning and Completion)

"Board's Construction Requirements"  

means the requirements of the Board set out or identified in Section 3 of Part 8 of the Schedule (Construction Matters) as amended from time to time in accordance with the terms of this Agreement

"Board's Cost Share"

has the meaning given in Clause 39.7 (Changes in Law)

"Board's Post Completion Commissioning"

means the Board's post-completion commissioning activities to be carried out by the Board in accordance with Clause 23.1 (Post Completion Commissioning)

"Board's Representative"

means the person so appointed by the Board pursuant to Clause 11 (Representatives)

"Bulk Transfer"

means, where a Pensionable Board Employee elects to transfer accrued benefits from a Transferor Scheme to a Transferee Scheme, that the Pensionable Board 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 Board 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 Cost of the Facilities"

has the meaning given in Clause 39.7 (Change in Law)

"Capital Expenditure"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"CDM Regulations"

has the meaning given in Section 2 of Part 8 of the Schedule (Construction Matters)

"Certificate of Commencement"

means the certificate to be issued and delivered by the Board in accordance with Clause 2.1(b) (Execution and Delivery of Documents)

"Certificate of Practical Completion"

means the certificate to be issued by the Independent Tester in accordance with Clause 22.12 (Pre-Completion Commissioning and Completion) in the form set out in Part 28 of the Schedule (Certificates) 

"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

"Clinical Functionality"

(a)  the following matters as shown on the [1:500 scale development control plan]:

(i)  the points of access to and within the [development site] and the [buildings];

(ii)  the relationship between one or more [buildings] that comprise the [development]; and

(iii)  the adjacencies between different Hospital departments [referenced to a drawing number or numbers];

(b)  the following matters as shown on the [1:200/1:100 scale plans] - (referenced to a list of drawing numbers in Project Co's Proposals for example):

(i)  the points of access to and within the [development site] and the [buildings];

(ii)  the relationship between one or more [buildings];3

(iii)  the adjacencies between different Hospital departments; and

(iv)  the adjacencies between rooms within the Hospital departments;

(c)  the quantity, description and areas (in square metres) of those rooms and spaces shown on the [Schedules of Accommodation];

(d)  the location and relationship of equipment, furniture, fittings and user terminals as shown on the [1:50 loaded room plans] in respect of:

(i)  all bed and trolley positions;

(ii)  internal room elevations;

(iii)  actual ceiling layouts; and

(iv)  [other project specific requirements might need to be considered, for example with regard to theatres and imaging departments]; and

(a)  The location of and the inter-relationships between rooms within a department as shown on [                    ] scale drawings,

but only insofar as each of the matters listed in (a) to (e) above relate to or affect Clinical Use

"Clinical Services"

means management, responsibility, administration and carrying out of the clinical and medical services provided at the Facilities [Boards to consider any other relevant areas] by the Board from time to time and which are not services to be provided by Project Co to the Board under this Agreement

"Clinical Use"

means the use of a room or space to the extent that it is used by the Board or its employees, tenants, agents and/or contractors (but not, to avoid doubt, [Project Co staff] for carrying out the Clinical Services

"Collateral Agreements"

means the Contractor's Collateral Agreement, the Service Providers' Collateral Agreements [and the Independent Tester's Collateral Agreement]4

"Commencement Date"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"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 Part 34 of the Schedule (Commercially Sensitive Information) in each case for the period specified in column 2 of Parts 1 and 2 of Part 34 of the Schedule]

"Commissioners"

has the meaning given in Clause 53.3 (VAT)

"Commissioning Completion Certificate

means [     ]

"Commissioning End Date"

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

["Committed Standby Facility"

means [          ]]

"Compensation Event"

has the meaning given in Clause 41.11

"Compensation Payment"

has the meaning given in Clause 48.6 (Compensation on Termination)

["Completion Criteria"5

means the Completion Tests as defined in Appendix [     ] of Part 12 of the Schedule (Outline Commissioning Programme) and as may be applicable to each Phase]

"Completion Date"

means [insert agreed date on which completion is scheduled to occur] or such revised date as may be fixed pursuant to Clause 41

["Completion Process"

means the process and procedures for carrying out the notifications, testing, inspections and completion certification as defined in [Part [                    ] ] of Part 12 of the Schedule as may be applicable to each Phase of the Works the dates for which shall be incorporated in the Final Commissioning Programme]

"Compliant Tender"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure) 

"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 Information6.

"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 Project Co and the Contractor (which, as at the date of this Agreement, is in the Agreed Form) as amended from time to time in accordance with this Agreement

"Construction Phase"

means [see Clause 15.3]

"Construction Quality Plan"

means the document at Section 8 of Part 8 of the Schedule (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

"Contracting Associate"

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

NB:  This provision should be drafted on a project specific basis to encompass any principal sub-contractors to Project Co

"Contract Month"

means a calendar month

"Contract Year"7

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)

"Contractor"

means [insert the name of Contractor] engaged by Project Co to carry out the Works and any substitute design and/or building contractor engaged by Project Co as may be permitted by this Agreement

"Contractor's Collateral Agreement"  

means the collateral agreement between the Board, Project Co and the Contractor in the form set out in Part 11 of the Schedule (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 Site

"Contractor's Site Rules"

means the Contractor's rules, applicable on Site to the Board, Project Co, 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)

"Cumulative Allowable Expenses"

has the meaning given in Clause 39.7 (Changes in Law)

"Custodian"

means [insert the name of Custodian] or any new custodian appointed by Project Co and the Board pursuant to this Agreement from time to time

"Custody Agreement"

means the agreement with the Custodian set out in Part 3 of the Schedule (Custody Agreement)

"Decanting and Decommissioning"

means [see Clause 23.6]

"Deemed Liability"

has the meaning given in Clause 48.7(c)(ii) (Compensation on Termination)

"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 Project Co to meet the Board's Construction Requirements and/or Project Co's Proposals or otherwise to comply with its obligations under this Agreement

"Delay Event"

has the meaning given in Clause 41.3 (Delay Events) 

"De Minimis Amount"

has the meaning given in Clause 39.6(a) (Changes in Law)

"Department of Health"

means the Department of Health, or such body that may supersede or replace the Department of Health from time to time

"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 of Part 8 of the Schedule (Construction Matters)

"Directive"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Direct Losses"

means, subject to the provisions of Clause 9.1 (Limits on liability), 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

"Disaster Plan"

means the plan set out Part 5 of the Schedule (Disaster Plan)

"Disclosed Data"

means any Design Data and any other written information, data and documents (including, to avoid doubt, data and documents concerning the Title Deeds and any rights of any person in respect of the Site but excluding information contained in the [First Employee List] or any subsequently updated version of that list) made available or issued to Project Co or any Project Co Party in connection with the Project by or on behalf of the Board (or any Board Party) whether before or after the execution of this Agreement

"Discriminatory Change in Law"

means any Change in Law the effect of which is to discriminate directly against:

(a)  hospitals whose design, construction, financing and operation are procured by a contract under the PFI (or any similar successor programme) in relation to other similar hospital projects; or

(b)  companies undertaking projects procured by contracts under the PFI (or any similar successor programme) in relation to other companies undertaking similar projects; or

(c)  the [insert name of the Project hospital] Hospital in relation to other hospitals; or

(d)  Project Co in relation to other companies,

save that:

(i)  such action shall not be a Discriminatory Change in Law where it is in response to any act or omission on the part of Project Co which is illegal (other than an act or omission rendered illegal by virtue of the Discriminatory Change in Law itself);

(ii)  such action shall not be deemed to be discriminatory solely on the basis that its effect on Project Co is greater than its effect on other companies; and

(iii)  a change in taxes or the introduction of a tax affecting companies generally or a change in VAT shall be deemed not to be discriminatory in any circumstances (to avoid doubt, such changes being given effect in accordance with Clause 53 (Taxation)

"Dispute"

has the meaning given in paragraph 1 of Part 26 of the Schedule (Dispute Resolution Procedure)

"Dispute Resolution Procedure"

means the procedure set out in Part 26 of the Schedule (Dispute Resolution Procedure) 

"Draft Proposal"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure) 

"Economic Reinstatement Test"

means the test set out in Clause 36.23 of this Agreement

["Employee Transfer"]

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

"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

"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

"Equipment"

means [see Clause 23.6]

"Estimated Increased Maintenance Costs"

has the meaning given in Clause 28.7 (Maintenance)

"Executive"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Excluded Person"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Excusing Cause"  

has the meaning given in Clause 8.7 (Excusing Causes)

"Expert"  

means the individual(s) appointed in accordance with Part 26 of the Schedule (Dispute Resolution Procedure)

"Expiry Date"

means the date on which this Agreement will terminate in accordance with Clause [46.3] (Non-Default Termination)

"Facilities"

means the Hospital, buildings and other facilities, together with all supporting infrastructure (including the Plant and [the Group 1 Equipment]) and amenities located on the Site as required to enable Project Co 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

"Fair Value"

means the amount at which an asset or liability could be exchanged in an arms length transaction between informed and willing parties, other than in a forced or liquidated sale

["Fast Track Dispute Resolution Procedure"]

[means the procedure referred to in paragraph 6 of Part 26 of the Schedule (Dispute Resolution Procedure)]

"Fees Regulations"

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

"Final Commissioning Programme"  

means the programme to be jointly developed and agreed by the Board and Project Co in accordance with the provisions of Clause 22.2 (Pre-Completion Commissioning and Completion)

"Financial Close"

means the date of this Agreement

"Financial Model"

means the computer spreadsheet model for the Project incorporating statements of Project Co's cashflows including all expenditure, revenues, financing and taxation of the Project Operations together with the profit and loss accounts and balance sheets for Project Co 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 (Custody of Financial Model), the output from which at the date of this Agreement is shown at Part 19 of the Schedule (Financial Model) and a copy of which is attached to this Agreement on disk as Attachment [  ]

"Finishes"

means those finishes listed at Table A of Part 10 of the Schedule (Review Procedure)

"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 43 (Force Majeure)

"Funders"

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

"Funders' Direct Agreement"

means the agreement to be entered into between the Board, the Senior Funders and Project Co in the form set out in Part 6 of the Schedule (Funders' Direct Agreement)

"Funding Agreements"

means all or any of the agreements or instruments to be entered into by Project Co 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 Project Co or any of its Associates relating to the rescheduling of their indebtedness or the refinancing of the Project Operations)

"Funding Shortfall"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"General Procedure"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"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 Lease"

means a Lease in respect of the Site to be entered into between the Board as Landlord and Project Co as tenant pursuant to Clause 14 (Nature of Land Interest)]

"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

"Group 1 Equipment"

means [insert definition of Group 1 Equipment]

"Handback"

means the return of the Facilities by Project Co to the Board on the Expiry Date in accordance with this Agreement

"Handback Amount"

has the meaning given in Part 24 of the Schedule (Handback Procedure) 

"Handback Bond"

has the meaning given in Part 24 of the Schedule (Handback Procedure)

"Handback Certificate"

means the certificate of confirmation that the Facilities comply with the Handback Requirements to be issued by the Board in accordance with Part 24 of the Schedule (Handback Procedure)

"Handback Procedure"

means the procedure for Handback described in Part 24 of the Schedule (Handback Procedure)

"Handback Programme"

has the meaning given in Part 24 of the Schedule (Handback Procedure)

"Handback Requirements"

has the meaning given in Part 24 of the Schedule (Handback Procedure)

"Handback Works"

has the meaning given in Part 24 of the Schedule (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);

"H&S Conviction"

has the meaning given in Clause 44.1(f) (Project Co Events of Default)

"HoldCo"

means [insert details of Project Co's 100% Holding Company if any]

"Holding Company"

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

"Hospital"

means [insert details]

"Hospital Manager"

means Project Co's duty manager who shall be present at the Facilities in accordance with the Service Level Specifications

"Indemnifier"

has the meaning given in Clause 8.3 (Conduct of Claims)

"Indemnity Period"

means [see Clause 6.13]

"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 Part 15 of the Schedule (Independent Tester Contract) between Project Co, the Board and the Independent Tester

"Independent Tester's Collateral Agreement"

means the collateral agreement between the Board, Project Co and the Independent Tester in the form set out in Part 11 of the Schedule (Collateral Agreements)

"Indirect Losses"

has the meaning given in Clause 9 (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 set out in Clause 31.6]

"Initial Funding Agreements"

means [describe the Funding Agreements put into place upon signature of the Agreement] in the Agreed Form

"Insurance Proceeds Account"

means the account numbered [                    ] in the joint names of Project Co and the Board with the [Account Bank (as defined in the Funding Agreement)]

"Insurance Proceeds Account Agreement"

means the agreement in the form set out in Part 32 of the Schedule 

"Insurance Term"

means any terms and/or conditions required to be included in a policy of insurance by Clause 36 and/or Part 21 of the Schedule (Insurance Requirements)  but excluding any risk 

"Insurances"

means, as the context requires, all or any of the insurances required to be maintained by Project Co pursuant to this Agreement

"Intellectual Property"

means all registered or unregistered trade marks, 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 Project Co, any Project Co Party or by other third parties (for the use by or on behalf of or for the benefit of Project Co) 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

["Interim Service Failure"

has the meaning given in paragraph [                    ] of Part 18 of the Schedule (Payment Mechanism)]

["Interim Service Statements" or "Service Statements"

means the Board's service statements for the provision of Interim Services, set out in Part 16 of the Schedule, as amended from time to time in accordance with Clause 40 (Variations) and Clause 27 (Services)]

["Interim Services"

means the services to be provided, managed and/or procured by Project Co for the Board in accordance with Part 16 of the Schedule (Interim Service Requirements) as subsequently amended or adjusted in accordance with this Agreement [which shall include the Retained Services]] 

"IRR"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"IT"

means information technology systems, hardware and software

"Junior Debt"

has the meaning in Section F of Part 23 of the Schedule

"Joint Insurance Account"

means the joint bank account in the names of the Authority and the Contractor, having account number [                 ], or any replacement account held by the Parties from time to time 

"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 Board and/or Project Co 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 Project Co by the Board;  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

"Liaison Committee"

means the committee referred to in Clause 12 (Liaison)

"Liaison Procedure"

means the procedure referred to in Clause 12 (Liaison) 

"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)

NB:  The entry of the United Kingdom into European Monetary Union (EMU) may have an effect on the continued availability or general applicability of a sterling denominated LIBOR rate and other provisions of this standard form.  Boards should consider, on a project specific basis, the effect EMU could have on the Agreement and take steps accordingly.

"Licence"

means the licence procured by the Board pursuant to Clauses 14.1 and 14.2 and in the form set out in Part 7 of the Schedule;

"Liquid Market"

means that there are sufficient willing parties (being at least two parties, each of whom is capable of being a Suitable Substitute Contractor) in the market for PFI contracts or similar contracts for the provision of services (in each case the same as or similar to this Agreement) for the price that is likely to be achieved through a tender to be a reliable indicator of Fair Value provided always that any vehicle controlled and established by the Senior Funders specifically for the purposes of the Project and to which this Agreement may be novated shall be discounted in assessing whether there are sufficient willing parties in the market for such purposes8

"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 Specifications and Method Statements for [describe relevant service] and that the Facilities comply with the Board's Construction Requirements and Project Co's Proposals (including, without limitation, the renewal or replacement of any Plant or equipment) throughout the Project Term

"Market Tested Services"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Market Testing"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Market Testing Date"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Market Testing Meeting"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Market Testing Proposal"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"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;

"Method Statements"

means the method of providing a Service as set out or identified in Section 2 of Part 14 of the Schedule (Service Requirements) as amended from time to time in accordance with Clause 40 (Variation Procedure) and Clause 27 (The Services)

"Monthly Service Payment"

has the meaning given in Part 18 of the Schedule (Payment Mechanism)

"National Health Service Board" or "NHS Board"

means a body established pursuant to Section 12A of the National Health Service (Scotland) Act 1978

"NCC"

means the National Computing Centre Limited (or any body that may supersede or replace it from time to time)

"NHS"

means the National Health Service

"NHS Pension Scheme"

means [to be inserted by the Board on a project specific basis, in context of the NHS pension scheme at the time the 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 Board'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 Project Co by the Board;

"NHS Specific Change in Law"

means any Change in Law which principally affects or principally relates only to the provision or operation of healthcare premises and any change in a NHS Requirement (other than any NHS Requirement which merely gives effect to Law generally and does not principally affect or principally relate to the provision or operation of the Hospital or healthcare premises)

"Operational Term"

means the period from the Actual Completion Date until the end of the Project Term

"Option Period"

shall have the meaning given in Clause 36.14 (c) (Uninsurability)

"Original Senior Commitment"

means the amount committed under the Senior Funders Agreements as at Financial Close (as adjusted to take into account any Qualifying Variation)9

"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 Part 12 of the Schedule (Outline Commissioning Programme)

"Payment Commencement Date"

means the later of the Completion Date (or such earlier date as may be agreed by the parties in their absolute discretion) and the Actual Completion Date

["Payment Commencement Date 1"

means the later of the original Phase 1 Completion Date (or such earlier date as may be agreed pursuant to Clause 19.5 or otherwise by the parties in their absolute discretion) and the Phase 1 Actual Completion Date]

["Payment Commencement Date 2"

means the later of the original Phase 2 Completion Date (or such earlier date as may be agreed pursuant to Clause 19.5 or otherwise by the parties in their absolute discretion) and the Phase 2 Actual Completion Date]

"Payment Mechanism"

has the meaning given in Part 18 of the Schedule (Payment Mechanism)

["Pensionable Board Employee"]

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

"Performance Guarantees"

means the guarantees to Project Co 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

"Performance Monitoring System"

has the meaning given in Part 14 of the Schedule (Service Requirements)

"Permitted Borrowing"10

means without double-counting, any:

(a)  advance to Project Co under the Senior Funders Agreements, provided that such advance is not made under any Committed Standby Facility;

(b)  Additional Permitted Borrowing;

(c)advance to Project Co under any Committed Standby Facility which is made solely for the purpose of funding any cost overruns, increased expenses or loss of revenue which Project Co incurs, provided that such funds are not used in substitution for other sources of committed funding designated for those purposes11; and

(d)  kinterest 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 Funders 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

"PFI"

has the meaning given in Recital E

["Phase"

means, as the context may require, Phase 1 and/or Phase 2 as described in Part [          ] of the Schedule12 and "Phases" shall be construed accordingly]

["Phase 1"

means Phase 1 as described in Part [          ] of the Schedule13]

["Phase 2"

means Phase 2 as described in Part [          ] of the Schedule]

["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]

["Phase 1 Actual Completion Date"

means the date on which Phase 1 has been completed in accordance with this Agreement, as such date shall be stated in the Certificate of Practical Completion for Phase 1, or, in the event of dispute, as such date may be determined in accordance with Part 26 of the  Schedule (Dispute Resolution Procedure)]

["Phase 1 Completion Date"

means (subject to Clause 41) the date described as such in Part [          ] of the Schedule (Table of Phases)]

["Phase 2 Actual Completion Date"

means the date on which Phase 2 has been completed in accordance with this Agreement, as such date shall be stated in the Certificate of Practical Completion for Phase 2, or, in the event of dispute, as such date may be determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure)14]

["Phase 2 Completion Date"

means (subject to Clause 41) the date described as such in Part [          ] of the Schedule (Table of Phases)]

"Physical Damage Policies"

means the policies of insurance referred to in paragraph 1 of Section 1 and paragraph 1 of Section 2 of Part 21 of the Schedule (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 Board Additional Works Item or Board Works Variation and the Planning Approval)

"Plant"

means the plant and equipment to be provided and/or maintained by Project Co pursuant to this Agreement

"Post Completion Commissioning"

means, as appropriate, Project Co's Post Completion Commissioning and/or the Board's Post Completion Commissioning

"Preferred Tenderer"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Procurement Legislation"

means the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1) and any other legislation or rules which may from time to time regulate the procurement activities of the Board

"Programme"

means the programme set out in Part 9 of the Schedule (The Programme) as revised and issued by Project Co (or on its behalf) from time to time pursuant to Clause 19 (Programme and Dates for Completion)

"Programmed Maintenance"

means the maintenance work which Project Co is to carry out in accordance with the Schedule of Programmed Maintenance

"Programmed Maintenance Information"

has the meaning given in Clause 28.3 (Maintenance)

"Prohibited Act"

has the meaning given in Clause 54 (Corrupt Gifts)

"Project"

has the meaning given in Recital B

"Project Co Event of Default"

has the meaning given in Clause 44 (Project Co Events of Default)

"Project Co Party"

means Project Co'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.  "Project Co Parties" shall be construed accordingly

"Project Co's Post-Completion Commissioning"

means Project Co's commissioning activities carried out in accordance with Clause 23.1 (Post Completion Commissioning)

"Project Co's Pre-Completion Commissioning"

means Project Co's commissioning activities to be carried out in accordance with Clause 22 (Pre Completion Commissioning and Completion)

"Project Co's Proposals"

means the document at Section 4 of Part 8 of the Schedule (Construction Matters) as amended from time to time in accordance with Clause 40 (Variation Procedure)

"Project Co's Representative"

means the person appointed by Project Co pursuant to Clause 11 (Representatives)

"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 Project Co's Pre-Completion Commissioning and Project Co's Post-Completion Commissioning, the maintenance of the Facilities (including the renewal or replacement of Plant), the management and provision of the Services and the performance of all other obligations of Project Co under this Agreement from time to time

"Project Term"

means the period commencing at [midnight] on the date of this Agreement and expiring at [midnight] on [date] or on such other date as may be determined in accordance with this Agreement

"Project"

has the meaning given in Recital B

"Proposal"

means:

(a)  in the case of a bill, the bill being introduced by the Government or receiving the support of the Government at its second reading in the first House of Parliament into which it is introduced or the bill passing a second reading in the first House of Parliament into which it is introduced or, in the case of a bill passing through the Scottish Parliament, the bill being introduced by the Scottish Ministers or receiving the support of the Scottish Ministers at Stage 2 in the Scottish Parliament or the bill passing Stage 2 in the Scottish Parliament; or

(b)  in the case of subordinate legislation, the proposed statutory instrument or order being laid before Parliament in draft or, in the case of any subordinate legislation of the Scottish Parliament, such analogous proceedings under the procedures adopted by the Scottish Parliament pursuant to Section 22 of the Scotland Act 1998; or

(c)  in the case of a directive, regulation or decision of the European Union, its adoption; or

(d)  in the case of an administrative act as referred to in the definition of Adverse Law, any of the following prior or preparatory to the making of such an act:

(i)  the taking by the Board, the Government, a minister of the Crown, the Scottish Ministers or a department, agency, regulator or other public body or official of any step in a process defined by Law for the making of such administrative acts, other than any early stages of such process (such as, without limitation, consultation or information gathering) following the completion of which further substantive steps remain in such process before the making of such an administrative act can occur; or

(ii)  any communication from the Government,  a minister of the Crown, the Scottish Ministers or the department, agency, regulator or other public body or official responsible for making such administrative acts, to the effect that such an administrative act will be made.

"Prospective Tenderers"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Protective Legislation"

means each of the National Health Service (Residual Liabilities) Act 1996 and the National Health Service (Private Finance) Act 1997

"Qualifying Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Quality Manager"

means the quality manager appointed pursuant to Clause 25 (Quality Assurance)

"Quality Plans"

means the Design Quality Plan and Construction Quality Plan, prepared in accordance with Section 8 of Part 8 of the Schedule (Construction Matters), and the Services Quality Plan, prepared in accordance with Section 3 of Part 14 of the Schedule (Service Requirements), as required to be implemented by Project Co in accordance with Clause 25 (Quality Assurance)

"Range of Finishes"

has the meaning given in paragraph 1.2(c)(i)) of Part 10 of the Schedule (Review Procedure)

"Rectification"

has the meaning given in Part 18 of the Schedule (Payment Mechanism)

"Reinstatement Plan"

means has the meaning given in Clause 36.22 (Reinstatement)

"Reinstatement Works"

shall have the meaning given in Clause 36.22 (Reinstatement)

"Refinancing"

has the meaning given in Part 29 of the Schedule (Refinancing)

"Relevant Change in Law"  

has the meaning given in Clause 39 (Change in Law)

"Relevant Incident"

shall have the meaning given in Clause 36.22 (Reinstatement) 

"Relevant Payment"

has the meaning given in Clause 36.14(c) (Uninsurability)

"Relevant Proceeds"

has the meaning given in Clause 36.22 (Reinstatement) 

["Relevant Service Transfer Date"]

[has the meaning given in [Clause 30.1 (Employee Transfer)]]

"Relevant Tax Liability"

has the meaning given in Clause 48.7(c) (Compensation on Termination)

"Relevant Works Change in Law"

has the meaning given in Clause 39.6 (Change in the Law)

"Relief"

has the meaning given in Clause 48.7(a) (Compensation on Termination)

"Relief Events"

has the meaning given to it in Clause 42 (Relief Events)

"Requests for Information"

shall have 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)

"Restricted Person"

means either:

(a)  a person providing or proposing to provide healthcare services of a similar nature to those provided or contemplated by the Board at the time in question; or

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

NB:  This definition is to be considered by Boards on a project specific basis.

"Retained Services"

means the catering, domestic, on-site laundry and linen, portering and security guard services15 to be provided and/or procured by Project Co for the Board in accordance with Part 14 of the Schedule (Service Requirements)16 as subsequently amended or adjusted in accordance with this Agreement

"Revenue"

means the projected Unavoidable Fixed Costs and Senior Debt Service Costs of Project Co. 

"Review Procedure"

means the procedure set out in Part 10 of the Schedule (Review Procedure)

"Reviewable Design Data"

means the Design Data listed at Section 5 of Part 8 of the Schedule (Construction Matters)17

"Revised Senior Debt Termination Amount"

has the meaning given in Section F of Part 23 of the Schedule (Compensation on Termination)

"Room Data Sheets"

has the meaning given in Part 22 of the Schedule (Variation Procedure) 

"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 made) or, in the event that no such agreement is reached, as may be determined in accordance with the [Fast Track Dispute Resolution Procedure]

"Schedule of Programmed  Maintenance"

means the programme referred to in Clause 28.1 to be submitted to the Board's Representative by Project Co in accordance with Part 10 of the Schedule (Review Procedure)

"Security Trustee"

means [                    ] 

"Selection Period"

has the meaning given in paragraph 1.2(c)(i) of Part 10 of the Schedule (Review Procedure)

"Senior Debt Amount"

has the meaning given in Section F of Part 23 of the Schedule (Compensation on Termination) 

"Senior Debt Service Costs"

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

(a)  sums which are in arrears;

(b)  all sums reserved by Project Co and which  Project Co is entitled to use to make such payments, without breaching the [Senior Funders Agreements].

"Senior Funders"

means [specify relevant funders]

"Senior Funders Agreements"

means [          ]18 as at the date of this Agreement or as amended with the prior written approval of the Board pursuant to Clause 4.3;19

"Sensitive Information"

has the meaning given in Clause 52.11 (Confidentiality)

"Service Contracts"

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

"Service Failure"

has the meaning given in paragraph [                    ] of Part 18 of the Schedule (Payment Mechanism)

"Service Failure Points"

means the points awarded in accordance with the provisions of the Performance Monitoring System

"Service Level Specifications"

means the requirements of the Board set out in Section 1 of Part 14 of the Schedule (Service Requirements) as amended from time to time in accordance with Clause 40 (Variation Procedure)

"Service  Payments"

has the meaning given in Part 18 of the Schedule (Payment Mechanism)

"Service Provider"

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

"Service Providers' Collateral Agreements"

means the collateral agreements between the Board, Project Co and each Service Provider in the form set out in Part 11 of the Schedule (Collateral Agreements)

"Service Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Services"

means the services to be provided, managed and/or procured by Project Co for the Board in accordance with Part 14 of the Schedule (Service Requirements) [and Part 16 of the Schedule (Interim Service Requirements)] as subsequently amended or adjusted in accordance with this Agreement and including the Retained Services

"Services Quality Plan"

means the document set out in Section 3 of Part 14 of the Schedule (Service Requirements)

"Shareholder(s)"

means a party listed as such in Part 27 of the Schedule (Project Co Information) as changed from time to time in accordance with this Agreement

"Shareholders Agreements"

means the agreement or agreements between the Shareholders relating to Project Co, including any agreement relating to the subscription of equity (or other shareholder funding) by the Shareholders in Project Co [or HoldCo]

"Site"

means the land made available to Project Co for the Project and 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

"Small Works"

has the meaning given in Section 1A of Part 22 of the Schedule (Variation Procedure)

"Snagging Matters"

means minor items of outstanding work (including in relation to landscaping) which would not materially impair the Board's use and enjoyment of the Facilities or the carrying out by the Board of the Clinical Services or the performance of the Services by Project Co

"Snagging Notice"

means the notice to be issued by the Independent Tester in accordance with Clause 22.13 (Completion Certificate)

"Sub-Contracts"

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

"Sub-Contractor"  

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

["Sub Lease"

means the sub lease in respect of the Site to be entered into between the Board as sub tenant and Project Co as landlord pursuant to Clause 14 (Nature of Land Interest)]

"Subsidiary"

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

"Suitable Substitute Contractor"

has the meaning given in Section F of Part 23 of the Schedule 

"Tenderers"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Tender Requirements"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Tender Validity Period"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Termination Date"

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

"Third Party Shareholder"

means [definition of non-sponsor equity providers]

"Title Deeds"

means of the title deeds to the Site which have been exhibited to (and examined by) Project Co and with which Project Co is deemed by its execution of this Agreement to be satisfied with regard to their content, validity and completeness

["Transfer Date"]

[means the date on which an [Employee Transfer] occurs]

["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 Board Employee in place of the Transferor Scheme]

["Transferor Scheme"]

[means a pension scheme of which a Pensionable Board 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 Board]

["Transferee Scheme"]

[means a pension scheme of which a Pensionable Board 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 Board]

["Transferring Board Employee"]

[means any Board Employee who transfers under an Employee Transfer in accordance with this Agreement]

"TUPE Information"

has the meaning given in Part 17 of the Schedule (Market Testing Procedure)

"Unavoidable Fixed Costs"

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

(a)  costs which could have reasonably been mitigated or avoided by Project Co;

(b)  payments to Project Co's Associated Companies;

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

(d)  payments to holders of equity in Project Co, providers of Junior 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 Project Co can recover under contract or in respect of which Project Co has a remedy against another person in respect of the same liability;

(h)  payments to the extent that Project Co has available to it including

(i)  reserves which Project Co can draw upon without breaching the Senior Financing Agreement;

(ii)  standby or contingent facilities or funds of Senior Debt or equity which Project Co 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:

(a)  insurance is not available to Project Co in respect of the Project in the worldwide insurance market with reputable insurers of good standing in respect of that risk; or

(b)  the insurance premium payable for insuring that risk is at such a level that the risk20 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 28.8 (Maintenance)

"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

"Variation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Variation Confirmation"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Variation Enquiry"

has the meaning given in Part 22 of the Schedule (Variation Procedure)

"Variation Procedure"

means the procedure set out in Part 22 of the Schedule (Variation Procedure)

"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 53.5 (VAT)

"Viability Statement"

means a case made by the Board and accepted in writing by [          ] Health Board (or any other commissioner from time to time of the Board's healthcare services) and the Scottish Government that the Facilities (or substantially all of them) are no longer needed on the grounds of the healthcare needs of the Board's geographical area

"Vitiating Act" 

has the meaning given in Endorsement 2, Section 3 of Part 21 of the Schedule

"Warning Notice"

has the meaning given in Clause 29.4 (Monitoring of Performance)

["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 Services (Great Britain) General Council Conditions of Service; and (5) Whitley Councils for the Health Services (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 Group 1 Equipment] to be performed by Project Co in accordance with this Agreement (as varied, amended or supplemented from time to time in accordance with this Agreement)

"Works Variation Capital Limit"

has the meaning given in Part 22 of the Schedule (Variation Procedure); and

"Works Variation Delay Limit"

has the meaning given in Part 22 of the Schedule (Variation Procedure)