Conditions Precedents are to be determined on a project specific basis. By way of guidance, they will typically include:
• delivery of executed counterparts of each State Project Document;
• delivery of certified copies of all other Project Documents;
• legal opinions for the benefit of the State (and in a form and substance satisfactory to the State) from the solicitors acting for each Consortium Member as to customary matters including:
- the legal capacity and corporate power of each Consortium Member to enter into and perform its obligations under the relevant Project Documents;
- the enforceability against the relevant Consortium Member of the Project Documents to which it is a party; and
- due execution by the Consortium Member of the Project Documents to which it is a party;
• pre-rate set satisfaction notice;
• Development Phase Insurance commencement and evidence; and
• receipt by the State of the Financial Close Financial Model.
Care should be taken in determining whether an event or requirement should be a Condition Precedent and, if it is, determining which party benefits from the Condition Precedent. For example, requirements that could take a long period of time to be satisfied or may impact the scope of the Project on satisfaction, such as planning approvals and the conditions on which they are granted, may require bespoke treatment.
Clause 3.1 sets out the provisions that apply from execution of the Project Deed. Although the list of provisions is standard, it will need to be checked and confirmed on a project specific basis to ensure that the clauses listed are still relevant and to ensure that any additional terms that have been included in the Project Deed on a project specific basis that are intended to apply from the date of the Project Deed have been included.
Financial Close Adjustment Protocols will be used to update the Contract Close Financial Model (which includes the Model Output Schedule). It is important that the Financial Close Adjustment Protocols are updated on a project specific basis and include all the outputs to be included in the Model Output Schedule.