40.1.5 at any time after the Actual Completion Date [relevant Phase Actual Completion Date] Sub-hubco committing a material breach of its obligations under this Agreement (other than as a consequence of a breach by the Authority of its obligations under this Agreement) which results in the criminal investigation, prosecution and conviction of Sub-hubco or any Sub-hubco Party or the Authority under the Health and Safety Regime (an "H&S Conviction") provided that an H&S Conviction of a Sub-hubco Party or the Authority shall not constitute a Sub-hubco Event of Default if, within ninety (90) Business Days from the date of the H&S Conviction (whether or not the H&S Conviction is subject to an appeal or any further judicial process), the involvement in the Project Operations of each relevant Sub-hubco Party (which in the case of an individual director, officer or employee shall be deemed to include the Sub-hubco Party of which that person is a director, officer or employee) is terminated and a replacement is appointed by Sub-hubco in accordance with Clause 57.5 (Sub contracting);
In determining whether to exercise any right of termination or right to require the termination of the engagement of a Sub-hubco Party pursuant to this Clause 40.1.5, the Authority shall:
(a) act in a reasonable and proportionate manner having regard to such matters as the gravity of any offence and the identity of the person committing it; and
(b) give all due consideration, where appropriate, to action other than termination of this Agreement;