1.1 The regulations contained in Table A in the Companies (Tables A to F) Regulations 1985 as amended by the Companies (Tables A to F) (Amendment) Regulations 2007 and the Companies (Tables A to F) (Amendment) (No. 2) Regulations 2007 (which Table is hereinafter referred to as "Table A") shall, except as hereinafter provided or so far as the same are not consistent with the provisions of these Articles, constitute the regulations of the Company with the exception of regulations 2, 3, 8, 17, 24, 39, 40, 46, 50, 64 to 69 (inclusive), 72, 76 to 79 (inclusive), 81 (inclusive), 84, 87 to 91 (inclusive), 93 to 98 (inclusive), 112, 115 and 118 of Table A.
1.2 In these Articles
1.2.1 "Act" means (subject to Article 1.5) the Companies Act 1985;
1.2.2 "Affiliate" means in relation to any body corporate means another body corporate (with the exception of Hold Co) in the same Group, in each case as the first body corporate;
1.2.3 "Agreed Order of Priorities" means the agreed order of priorities adopted in accordance with Article 19.1, as amended from time to time in accordance with Article 19.2;
1.2.4 "Agreed B Director Job Description" means the job description for the role of B Director adopted in pursuance of Article 9.11, as amended from time to time in accordance with Article 9.12;
1.2.5 "B Director Criteria" means the following requirements;
1.2.5.1 the relevant candidate for such role is not employed by, or a director of, or engaged in any significant consultancy with the Nominator, the Health Board or any shareholder of Hold Co;
1.2.5.2 the Nominator, acting reasonably, is satisfied that the relevant candidate substantially meets the criteria set down in the Agreed B Director Job Description;
1.2.5.3 the relevant candidate has consented to such appointment, and
1.2.5.4 the relevant candidate is not disqualified from acting as a director.
1.2.6 "Board" means the board of directors of the Company;
1.2.7 "Charitable Donation" has the meaning given to it in the Project Agreement;
1.2.8 "Charity" has the meaning given to it in the Project Agreement;
1.2.9 "Consultants Appraisal" means a report from a firm of consultants instructed pursuant to Article 18.3;
1.2.10 "End Date" means the latest of (i) the expiry of the PA Period (ii) the date upon which the Company has satisfied in full all of its liabilities in respect of the Loan Stock and any other loans made by Hold Co to the Company and (iii) the Secured Finance Liabilities Discharge Date and (iv) the date upon which the Company has no outstanding obligations or liabilities to, or outstanding liabilities or obligations due to it by, any third party which could (in any such case) have any direct or indirect financial effect on any shareholder of Hold Co or any Affiliate of any such shareholder;
1.2.11 "Facility Agreement" means the facilities agreement dated on or around the date of the resolution adopting these Articles between the Company, Hold Co and [ ] in its own right and as Agent and Security Trustee for the Lenders (as defined therein);
1.2.12 "Funding Agreements" means all or any of the agreements or instruments entered into or to be entered into by the Company relating to the financing of the Project (including, but not limited to, the Facility Agreement);
1.2.13 "Gift Aid Payments" means payments which constitute qualifying donations within the meaning of section 339 of the Income and Corporation Taxes Act 1988, or, in the event of a substantial change to the tax reliefs relating to donations to a charity such that the making of payments by the Company by way of qualifying donations is no longer considered appropriate by the directors, payments to the Charity structured in such other manner (consistent with the intent to maximise the benefit of the Company and the Charity flowing from the relevant tax reliefs) as the directors may determine;
1.2.14 "Group" has the meaning given in Section 53(1) of the Companies Act 1989;
1.2.15 "Health Board" means [ ] health board constituted in Scotland under the National Health Service (Constitution of Health Boards) (Scotland) Order 1974 (S.I. 1974/267) as amended;
1.2.16 "Hold Co" means [ ]1 Limited, a company incorporated under the Companies Act in [ ] (with registered Number [ ]) and having its registered office at [ ] or (in substitution) any successor entity as holder (by virtue of a transfer not prohibited under the Project Agreement or Article 4.2) of A Shares in the Company;
1.2.17 "Hold Co A Shares" means A shares as a class in Hold Co;
1.2.18 "Hold Co B Shares" means B shares as a class in Hold Co;
1.2.19 "Loan Stock"2 means in relation to any member of the Company, such loan stock issued by the Company as is held by that member;
1.2.20 "Loan Stock Holder" means a holder of Loan Stock from time to time;
1.2.21 "Net Present Value" has the meaning given to it in the Project Agreement;
1.2.22 "Nominator" means [ ]3, which failing, any other body having no lesser degree of independence from central or local government nominated by the Scottish Ministers from time to time;
1.2.23 "PA Period" means the period commencing on the date of execution of the Project Agreement and ending on the later of (i) the Expiry Date (as defined in the Project Agreement) or (if earlier) the Termination Date (as defined in the Project Agreement) and (ii) the date when all of the obligations of the Health Board to the Company pursuant to the Project Agreement have expired, ceased or been satisfied in full;
1.2.24 "Project" means the project for the design, construction, financing and operation of [ ]4 and associated services, in accordance with the Project Agreement;
1.2.25 "Project Agreement" means the agreement so designated between the Company and the Health Board dated on or around the date of the resolution adopting these Articles;
1.2.26 "Qualifying Refinancing" has the meaning given to it in the Project Agreement;
1.2.27 "Relevant Agreement" means any contract in relation to which the Company is, or it is proposed that the Company shall become, a party;
1.2.28 "Relevant Documents" has the meaning given in the Facility Agreement and each is a "Relevant Document";
1.2.29 "Secured Finance Liabilities Discharge Date" means the date upon which the Security Trustee (as defined in the Facility Agreement) determines in writing that the Indebtedness of the Company and Hold Co to the Secured Creditors (as defined in the Facility Agreement) under the Finance Documents (as defined in the Facility Agreement) has been fully and irrevocably paid or discharged and no such further Indebtedness is capable of becoming outstanding under such Finance Documents;
1.2.30 "Share Pledge" means any pledge or other competent security granted over A Shares from time to time pursuant to a Funding Agreement;
1.2.31 "Transaction Document"5 means (a) each Relevant Document in its form as at the date of execution of the Project Agreement or as may have been amended in accordance with the requirements of Clause 4 of the Project Agreement and/or Clause [ ] [(Amendments, Waivers and Consents)] of the Facility Agreement and, where applicable, the provisions of these Articles or (where the context so permits) (b) each new document entered into in substitution for a Relevant Document which has terminated (or in substitution for a new document falling within this paragraph (b) which has terminated) where such new document is entered into in accordance with the requirements of Clause 4 of the Project Agreement and/or Clause [ ] [(Amendments, Waivers and Consents)] of the Facility Agreement and, where applicable, the provisions of these Articles;
1.2.32 "Trigger Events" means:
1.2.32.1 breach of a legal duty (applying under the general law) incumbent on any director, or
1.2.32.2 breach of any law binding upon the Company, its members, Loan Stock Holders or directors or breach of any rules of any regulatory regime to which the Company, its members, Loan Stock Holders or directors are subject, or
1.2.32.3 breach of any Transaction Document; or
1.2.32.4 failure to comply with the Agreed Order of Priorities.
1.3 For the purposes of these Articles, a person is "connected with" another person if they are connected with one another within the meaning of Section 839 of the Income and Corporation Taxes Act 1988.
1.4 References to persons shall include natural persons, bodies corporate, unincorporated associations, partnerships, joint ventures, trusts or other entities or organisations of any kind, including (without limitation) government entities (or political subdivisions or agencies or instrumentalities thereof).
1.5 Reference to any statute or statutory provision shall be interpreted as including any statutory amendment or re-enactment of that statue or statutory provision in force from time to time. References to "the Act" include any provisions of the Companies Act 2006 for the time being in force.
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1 This refers to the holding company for the Company
2 This corresponds to Junior Debt under the Project Agreement (refer to footnote [84]). It is a requirement that shares in Hold Co and loan stock are 'stapled' whether loan stock is by way of direct investment in Project Co or via Hold Co - please see JFDA Clause 5.
3 The identity of the Nominator should be agreed with SGHD prior to issuing the ITPD.
4 New facilities to be created by the Project
5 Transaction Documents should include all agreements relating to the Project.