41.2 Service Provider Default
Each of the following events shall, for the purposes of this Contract, constitute a Service Provider Default:
Material Breach
(a) a breach by the Service Provider of any of its obligations under this Contract which materially and adversely affects the performance of the Service;
(b) a Persistent Breach occurs;
Winding Up
(c) a court makes an order that the Service Provider [or Holdco] be wound up or a resolution for a voluntary winding-up of the Service Provider [or Holdco] is passed (except for the purposes of an amalgamation or reconstruction not involving or arising out of insolvency, the terms of which have previously been notified to and approved in writing by the Authority, acting reasonably);
Appointment of Receiver
(d) any receiver or receiver manager in respect of the Service Provider [or Holdco] is appointed or possession is taken, by or on behalf of, any creditor of any property that is the subject of a charge;
Voluntary Arrangement
(e) any voluntary arrangement is made for a composition of debts or a scheme of arrangement is approved under the Insolvency Act 1986 or the Companies Act 200656 in respect of the Service Provider [or Holdco] (expect for the purposes of an amalgamation or reconstruction not involving or arising out of insolvency, the terms of which have previously been notified to and approved by the Authority acting reasonably);
Administration Order
(f) an administration order is made or an administrator is appointed in respect of the Service Provider [or Holdco];
Assignment and Sub-Contracting
(g) a breach of clause 47.2 (Assignment and Sub-Contracting by the Service Provider) occurs;
Change of Control
(h) a breach of clause 48 (Change of Control of the Service Provider) occurs;
Abandonment
(i) abandonment of the Contract;
(j) a failure to achieve the Service Commencement Date by the Long Stop Date;
Default Termination Points
(k)
(i) three (3) or more Milestone Default Termination Points accrue against the Service Provider in relation to a relevant Milestone pursuant to clause 12.10 (Failure to complete Milestones on time);
(ii) the accrual of three (3) or more Service Default Termination Points in any thirteen (13) Month period;
Lighting Performance
(l)
(i) the Service Provider providing a service level of less than or equal to [ninety three per cent (93%)] of the Service required in accordance with PS2 Performance Target A when measured in accordance with paragraph 2.1 and PS2 Table 1 of Part 2 of the Payment Mechanism;
(ii) the Service Provider providing a service level of less than or equal to [fifty per cent (50%)] of the Service required in accordance with PS2 Performance Target B when measured in accordance with paragraph 2.2 and PS2 Table 2 of Part 2 of the Payment Mechanism;
Insurance
(m) a breach by the Service Provider of its obligation to take out and maintain Required Insurances except to the extent that such a risk is Uninsurable in accordance with clause 31.4 (Uninsurable Risks);
(n) at any time after the Service Commencement Date, the Service Provider commits a breach of its obligations under this Contract (other than as a consequence of a breach by the Authority of its obligations under this Contract) which results in the criminal investigation, prosecution and conviction of the Service Provider or any Service Provider Party or the Authority under the Health and Safety Regime (a H&S Conviction). Provided that:
(i) a H&S Conviction of a Service Provider Party or the Authority shall not constitute a Service Provider Default if, within sixty (60) 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 of each relevant Service Provider Party (which in the case of an individual director, officer or employee shall be deemed to include the Service Provider Party of which that person is a director, officer or employee) is terminated and a replacement is appointed by the Service Provider in accordance with clause 47.2 (Sub-Contracting by the Service Provider); and
(ii) in determining whether to exercise any right of termination or right to require the termination of the engagement of a Service Provider Party under this clause 41.2(n) 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 Contract.
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56 The latest Company Act should be referred to.