Unless otherwise expressly defined below, expressions used in this Schedule have the meanings given to them in clause 1. In this Schedule:
Compensation Date means:
(a) for a tender conducted under section 3.3:
(i) where section 3.3(k)(ii) applies, the date on which the State notifies Project Co under section 3.3(k)(ii); or
(ii) otherwise the date on which the New Contract is entered into or is anticipated to be entered into; and
(b) for an Independent Expert valuation under section 4:
(i) where it is deemed under section 3.3(g) that there is no Liquid Market, 60 Business Days after the date on which the State notifies Project Co that it has received fewer than two Compliant Tenders under section 3.3(g);
(ii) where section 3.3(j) applies, the later of the date on which the State notifies Project Co in accordance with section 3.3(j) and the date which is 60 Business Days after the Expiry Date; or
(iii) otherwise the date which is 60 Business Days after the Expiry Date.
Compliant Tender means any tender submitted that meets the qualification criteria notified under section 3.3(b).
Compliant Tenderer means the party who submits a Compliant Tender.
Default Termination Payment means the Termination Payment calculated under section 3 or section 4.
Force Majeure Termination Payment means the Termination Payment calculated under section 6.
Fair Market Value means the amount at which an asset, equity or liability could be exchanged in an arm's length transaction between informed and willing parties, other than in a forced or liquidation sale.
Highest Compliant Tender Price means the highest tender price offered by a Compliant Tender.
Independent Expert means an independent expert appointed under section 2.
Liquid Market means where there are at least two contractors (in addition to any party controlled by the Financiers) in the prevailing market prepared to competitively tender for the undertaking of, or acquisition of, projects which are the same or of a similar type to the Project on the same or substantially similar terms and conditions to those of this Deed and each of whom has agreed with the State to submit a Compliant Tender (even if a Compliant Tender is subsequently not received), such that the result of that tender process would provide a reasonably likely indicator as to Fair Market Value.
New Contract means a contract that replaces this Deed, but without imposing on the new contracting party any Liability for any breach of this Deed by Project Co prior to the date of that contract, and that assumes that:
(a) if the New Contract is entered into prior to the Date of Commercial Acceptance, the Works are to be designed, built, commissioned and tested to achieve Commercial Acceptance in accordance with this Deed;
(b) the Services are to be carried out in accordance with, and to the standards set out in, the PSDR and otherwise in accordance with this Deed;
(c) the term of the New Contract will be the period from the Compensation Date to the Final Expiry Date;
(d) the provisions with respect to payment of the State Contributions, Floating Rate Component and Service Payments continue to apply as set out in this Deed, noting that the Operating Phase may be shorter than is contemplated in the Financial Model as a result of delay or forecast delay to the achievement of Commercial Acceptance; and
(e) all other provisions of this Deed continue to apply.
Post Termination Quarterly Amount means for the whole or any part of a Quarter or Quarters for the period from the Expiry Date to the Compensation Date, an amount equal to the Service Payment, assuming no Abatement, plus or minus the Floating Rate Component, which would have been payable in respect of that Quarter or those Quarters under this Deed had this Deed not been terminated less an amount equal to the aggregate of (without double counting):
(a) the greater of all cost components related to the carrying out of the Services and the reasonable costs to the State of alternative provision of the Services in accordance with, and to the standards set out in, the PSDR and otherwise in accordance with this Deed (whether or not any Services are carried out);
(b) all cost components related to the provision of Insurance; and
(c) Rectification Costs incurred by the State.
For the avoidance of doubt, the Post Termination Quarterly Amount can be an amount that is less than zero.
Rectification Costs means an amount equal to the reasonable and proper costs incurred or reasonably anticipated to be incurred by the State in curing or otherwise addressing any default by Project Co and procuring performance of Project Co's obligations in accordance with the Project Documents.
Tender Costs means the reasonable and proper internal and external costs incurred by or on behalf of the State in carrying out the Tender Process (if any) and calculating the relevant Termination Payment (including engaging an Independent Expert).
Tender Process means the process by which the State requests tenders from persons interested in entering into a New Contract, evaluates the responses from those interested parties and negotiates to enter into a New Contract with a Compliant Tenderer.
Tender Process Monitor has the meaning given to that term in section 3.3(e).
Termination for Convenience Payment means the Termination Payment calculated under section 5.