1 Interpretation
1.1 In this Agreement, unless the context otherwise requires:
Accrued Rights has the meaning given to it in clause 10.8 (Authority Rights)
Accrued Rights Value means each of the [Construction Accrued Rights Liquidated Damages Value, the Construction Accrued Rights Value, the FM Accrued Rights Lifecycle Works Value, the FM Accrued Rights Termination Value and the FM Accrued Rights Value]
Appointed Representative means a Representative that has assumed the Service Provider's rights under the Project Agreement pursuant to clause 5.1 (Representative)
Authority Construction Liability Cap means the Construction Contractor's Liability Cap less the Construction Accrued Rights Value
Authority Construction Liquidated Damages Cap means the Construction Contractor's Liquidated Damages Cap less the Construction Accrued Rights Liquidated Damages Value
Authority FM Liability Cap means the FM Contractor Liability Cap for the Relevant Year less the FM Accrued Rights Value
Authority FM Life Cycle Works Cap means the Life Cycle Works Cap less the FM Accrued Rights Life Cycle Works Value
Authority FM Termination Cap means the FM Contractor Termination Cap less the FM Accrued Rights Termination Value
Authority Liability Cap means each of the Authority FM Liability Cap, the Authority FM Termination Cap, [the Life Cycle Works Cap,] or the Authority Construction Liability Cap [, or the Authority Construction Liquidated Damages Cap]1
Construction Accrued Rights Liquidated Damages Value means the amounts that would count against the Construction Contractor's Liquidated Damages Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.14 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
Construction Accrued Rights Value means the amounts that would count against the Construction Contractor's Liability Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.14 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
Construction Contract means the Construction Contract as defined in the Project Agreement and/or any novation thereof pursuant to the Construction Contractor Warranty
Construction Contractor Default has the meaning given to it in the Construction Contract2
Construction Contractor's Liability Cap has the meaning given to it in the Construction Contract3
Construction Contractor's Liquidated Damages Cap has the meaning given to it in the Construction Contract4
Construction Contractor Warranty has the meaning given in the Project Agreement
Deductions has the meaning given to it in the Payment Mechanism
Expert means an expert appointed pursuant to clause 20 (Dispute Resolution) to determine a dispute relating to this Agreement
Fair Value means the amount at which an asset or liability could be exchanged on an arm's length transaction between informed and willing parties, other than in a forced liquidation or sale
Final Statement has the meaning given to it in the Construction Contract5
FM Accrued Rights Life Cycle Works Value means the amount that would count against the Life Cycle Works Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.14 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
FM Accrued Rights Termination Value means the amounts that would count against the FM Contractor Termination Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.14 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
FM Accrued Rights Value means the amount that would count against the FM Contractor Liability Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.14 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
FM Contract means the FM Contract as defined in the Project Agreement and/or any novation thereof pursuant to the FM Contractor Direct Agreement
FM Contractor Default has the meaning given to it in the FM Contract6
FM Contractor Direct Agreement has the meaning given to it in the Project Agreement
FM Contractor Liability Cap has the meaning given to it in the FM Contract7
FM Contractor Termination Cap has the meaning given to it in the FM Contract8
Interim Payment has the meaning given to it in the Construction Contract9
Life Cycle Works Cap has the meaning given to it in the FM Contract10
Monthly FM Payment has the meaning given to it in the FM Contract11
Payment Mechanism means the payment mechanism set out in Schedule 15 to the Project Agreement
Project Agreement means the project agreement between the Authority and the Service Provider dated on or about the date of this Agreement
Relevant Required Insurances means the Required Insurances described in paragraph [2] of part 1 and paragraph [2] of part 2 of Schedule 18 (Insurances) of the Project Agreement12
Relevant Sub-Contractor means a sub-contracting party to a Works/Services Contract
Relevant Year means the [Contract Year]13 (as defined in the FM Contract) in which the Termination Date occurs
Representative means:
(a) the Facility Agent, the Security Trustee, any Secured Finance Party and/or any of their Affiliates;
(b) an administrator, administrative receiver, receiver or receiver and manager of the Service Provider appointed under the Security Documents;
(c) a person directly or indirectly owned or controlled by the Facility Agent, the Security Trustee, and/or any Secured Finance Party; or
(d) any other person approved by the Authority (such approval not to be unreasonably withheld or delayed)
Required Period means subject to clause 4 (No Liquid Market) the period starting on the date of a Termination Notice and:
(a) prior to and including the final Services Availability Date, ending one hundred and twenty (120) days after the date of the Termination Notice;
(b) after the final Services Availability Date, ending ninety (90) days after the date of the Termination Notice; or
(c) in either case, ending on such earlier date as the Facility Agent may specify by written notice to the Authority
Secured Finance Party means [♦]
Senior Debt Discharge Date means the date on which all amounts which may be or become owing by the Service Provider to each Secured Finance Party under the Senior Financing Agreements have been irrevocably paid in full
Step-In Date means the date on which the Facility Agent takes any action under clause 5.1 (Representative)
Step-In Period means the period from the Step-In Date up to and including the earlier of:
(a) the date specified in a notice issued pursuant to clause 7.1 (Step-Out);
(b) the date of any transfer under clause 8 (Novation)
(c) the date of any termination for breach under clause 6 (Step-in Period); and
(d) the date of expiry of the Project Agreement
Step-Out Date has the meaning given to it in clause 7.1 (Step-Out)
Suitable Substitute Contractor means a person approved by the Authority (such approval not to be unreasonably withheld or delayed) as:
(a) having the legal capacity, power and authority to become a party to and perform the obligations of the Service Provider under the Project Agreement;
(b) employing persons having the appropriate qualifications, experience and technical competence and having the resources available to it (including committed financial resources and sub-contracts) which are sufficient to enable it to perform the obligations of the Service Provider under the Project Agreement.
Termination Notice means a notice given by the Authority to the Facility Agent under clause 3.1 (Notice of Termination and Existing Liabilities)
Unrestricted Assets means those Assets, excluding any revenues or cash balances or rights accrued as at the Termination Date under or pursuant to or in connection with any of the Relevant Required Insurances (but not other Required Insurances), any Works/Services Contract or any Project Document, which are required by the Authority or its nominee or any replacement of the Service Provider for the purposes of the construction, operation or maintenance of the Facility following termination of the Project Agreement assuming such construction, operation or maintenance is carried out on terms substantially the same as the terms of the Project Agreement
Warning Notice means a formal warning notice served by the Authority under clause 52.1 (Warning Notice) of the Project Agreement
Works/Services Contract means a contract relating to the provision of the Works or any Service which is the subject of a Collateral Warranty14
1.2 The following terms have the meaning given to them in the Project Agreement:15
Additional Permitted Borrowing
Adjusted Estimated Fair Value of the Contract
FM Contractor Direct Agreement
Performance Payment Deductions
1.3 The following terms have the meaning given to them in the Senior Financing Agreements:16
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1 Any caps set out in clause 10.7 should also be listed here.
2 This definition will need to be checked for consistency with the Subcontract definition.
3 This definition will need to be checked for consistency with the Subcontract definition.
4 This definition will need to be checked for consistency with the Subcontract definition.
5 This definition will need to be checked for consistency with the Subcontract definition.
6 This definition will need to be checked for consistency with the Subcontract definition.
7 This definition will need to be checked for consistency with the Subcontract definition.
8 This definition will need to be checked for consistency with the Subcontract definition.
9 This definition will need to be checked for consistency with the Subcontract definition.
10 This definition will need to be checked for consistency with the Subcontract definition.
11 This definition will need to be checked for consistency with the Subcontract definition.
12 These are the Delay in Start Up and Business Interruption insurances.
13 This definition will need to be checked for consistency with the Subcontract definition.
14 To be considered on a project specific basis as a collateral warranty is only provided by a sub-contractor to the Construction Contractor under the Project Agreement.
15 This list will need to be reviewed against the defined terms in the Project Agreement.
16 This list will need to be reviewed against the defined terms in the Senior Financing Agreements.