1 Interpretation
1.1 In this Agreement, unless the context otherwise requires:
Accrued Rights has the meaning given to that term in clause 10 (Authority Rights)
Accrued Rights Value means each of the Sub-Contract Accrued Rights Lifecycle Works Value, the Sub-Contact Accrued Rights Termination Value and the Sub-Contract Accrued Rights Value
Appointed Representative means a Representative that has assumed the Service Provider's rights under the Contract
Authority Liability Cap means each of the Authority Sub-Contract Liability Cap, the Authority Sub-Contract Termination Cap or [the Life Cycle Works Cap,]
Authority Sub-Contract Liability Cap means the Sub-Contractor Liability Cap for the Relevant Year less the Sub-Contract Accrued Rights Value
Authority Sub-Contract Life Cycle Works Cap means the Life Cycle Works Cap less the Sub-Contract Accrued Rights Life Cycle Works Value
Authority Sub-Contract Termination Cap means the Sub-Contractor Termination Cap less the Sub-Contract Accrued Rights Termination Value
Collateral Warranty means a Sub-Contractor Direct Agreement
Contract means the agreement dated on or about the date of this Agreement between the Authority and the Service Provider pursuant to which the Service Provider is obliged to carry out the Project (as defined in the Contract)
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 Sub-Contract]1
[Interim Payment has the meaning given to it in the Sub-Contract]2
[Life Cycle Works Cap] has the meaning given to it in the Sub-Contract]3
[Monthly Sub-Contract Payment has the meaning given to it in the Sub-Contract]4
Payment Mechanism means the payment mechanism set out in Schedule 8 to the Contract
Relevant Required Insurances means the Required Insurances described in paragraph [♦] of part 1 and paragraph [♦] of part 1 of Schedule 21 (Insurance Matters) of the Contract5
Relevant Sub-Contractor means a sub-contracting party to a Services Contract
Relevant Year means the [Contract Year]6 (as defined in the Sub-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:
(prior to and including the final Service Commencement Date, ending one hundred and twenty (120) days after the date of the Termination Notice;
(a) after the final Service Commencement Date, ending ninety (90) days after the date of the Termination Notice; or
(b) in either case, ending on such earlier date as the Facility Agent may specify by written notice to the Authority
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
Sub-Contract 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 10.13 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
Sub-Contract Accrued Rights Termination Value means the amounts that would count against the Sub-Contractor Termination Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.13 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
Sub-Contract Accrued Rights Value means the amount that would count against the Sub-Contractor Liability Cap upon realisation of the Accrued Rights based upon the assessment notified to the Authority under clause 10.13 (Authority Rights), as the same may be adjusted in accordance with clause 20 (Dispute Resolution)
[Sub-Contractor Default has the meaning given to it in the Sub-Contract]7
[Sub-Contractor Liability Cap has the meaning given to it in the Sub-Contract]8
[Sub-Contractor Termination Cap has the meaning given to it in the Sub-Contract]9
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 Contract
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 Contract;
(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 Contract; and
(c) being any person who is not substantially concerned with the sale, distribution or manufacture of arms, tobacco, alcoholic beverages, gaming or pornography or any other person who would not be a fit and proper person to carry out the Service having regard to the Authority being a public sector body;
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 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 Apparatus following termination of the Contract assuming such construction, operation or maintenance is carried out on terms substantially the same as the terms of the Contract
Warning Notice means a formal warning notice served by the Authority under clause 42.8 (Warning Notice) of the Contract
Services Contract means a contract relating to the provision of any Service pursuant to the Contract which is the subject of a direct agreement between the Authority and a Sub-Contractor.
1.2 The following terms have the meaning given to them in the Contract :
Additional Permitted Borrowing
Adjusted Estimated Fair Value of the Contract
Authority Sub-Contractor Direct Agreement
Sub-Contractor Direct Agreement
The following terms have the meaning given to them in the Senior Financing Agreements:10
1.3 Interpretation
In this Agreement except where the context otherwise requires:
(a) the masculine includes the feminine and vice-versa;
(b) the singular includes the plural and vice-versa;
(c) a reference to any clause, sub-clause, paragraph, schedule, recital or annex is, except where expressly stated to the contrary, a reference to such clause, sub-clause, paragraph, schedule, recital or annex of and to this Agreement;
(d) save where stated to the contrary, any reference to this Agreement or to any other document shall include any permitted variation, amendment or supplement to such document;
(e) any reference to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended, replaced, consolidated or re-enacted;
(f) a reference to a person includes firms, partnerships and corporations and their successors and permitted assignees or transferees;
(g) headings are for convenience of reference only; and
(h) words preceding "include", "includes", "including" and "included" shall be construed without limitation by the words which follow those words.
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1 This definition will need to be checked for consistency with the Subcontract definition.
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 These are the Delay in Start Up and Business Interruption insurances.
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 list will need to be reviewed against the defined terms in the Senior Financing Agreements.