1 Definitions

1.1 In this Contract the following words and expressions shall, save where the context or the express provisions of this Contract otherwise require or admits, be deemed to have the following meanings:

Accrued means, when applied to any item of Apparatus, Apparatus which has become the responsibility of the Service Provider pursuant to this Contract by reason of an Authority Change under the Change Protocol and/or the application of the provisions of Schedule 15 (Accrual and De-Accrual of Apparatus) and Accrual shall be construed accordingly

Actual Monthly Payment Report means the report the Service Provider shall prepare and deliver to the Authority for each Month containing the information required to enable the calculation of the Monthly Payment (in the form set out in Appendix 2 to the Payment Mechanism or as otherwise agreed by the parties), such report to be based on the relevant Draft Monthly Payment Report and to include any amendments agreed by the parties during or following the Monthly Payment Meeting

Additional Income shall have the meaning given to it in clause 27.4 (Additional Income)

Additional Permitted Borrowing means on any date, the amount equal to any amount of principal outstanding under the Senior Financing Agreements (as the same may be, from time to time be amended whether or not with the approval of the Authority) in excess of the amount of principal scheduled under the Senior Financing Agreements at Financial Close to be outstanding at that date, but only to the extent that:

(a) this amount is less than or equal to the Additional Permitted Borrowings Limit; and

(b) in respect of any Additional Permitted Borrowing, the Agent is not in material breach of its obligations under clause 10(d)(iii) of the Senior Lenders Direct Agreement as it applies to such Additional Permitted Borrowing,

and provided further that any such excess amount of principal which is:

(i) invested as part of any Qualifying Variation;

(ii) outstanding from time to time as a result of any drawing under the Senior Finance Agreements as entered into at the date of this Contract, disregarding any subsequent amendment; or

(iii) outstanding from time to time as a result of any amendment to the Senior Finance Agreements in respect of which the Authority has agreed that its liabilities on a termination may be increased pursuant to clause 1.13 (Changes to Financing Agreements),

shall not be counted as Additional Permitted Borrowing

Additional Permitted Borrowings Limit means an amount equal to:

(a) ten per cent (10%) of the Original Senior Commitment for any Additional Permitted Borrowing subsisting in the period from the date of Financial Close to the date on which the amount outstanding under the Senior Financing Agreements is reduced to fifty per cent (50%) or less of the Original Senior Commitment; and thereafter

(b) the higher of:

(i) five per cent (5%) of the Original Senior Commitment; and

(ii) the amount of any Additional Permitted Borrowing outstanding on the last day of the period referred to in paragraph (a)

Adjusted Amount shall have the meaning given to it in clause 31.8 (Adjusted Amount)

Adjusted Highest Compliant Tender Price means the Highest Compliant Tender Price less the aggregate of:

(a) any Post Termination Service Amounts paid to the Service Provider to date;

(b) the Tender Costs; and

plus an amount equal to the aggregate of:

(i) all credit balances on any bank accounts held by or on behalf of the Service Provider on the date that the highest priced Compliant Tender is received;

(ii) any insurance proceeds and other amounts owing to the Service Provider to the extent not included in (i); and

(iii) the Post Termination Service Amount (if a negative number),

to the extent that:

(A) (i), (ii) and (iii) have not been directly taken into account in that Compliant Tender; and

(B) the Authority has received such amounts in accordance with the Contract

Adjustment means the adjustment to the Monthly Unitary Charge for each such Performance Standard as such Adjustment is calculated in accordance with paragraphs 1 to 7 (inclusive) of Part 2 of the Payment Mechanism and the term Adjustments shall be construed accordingly

Admission Agreement means an admission agreement entered into in accordance with regulation 5 of the Local Government Pension Scheme Regulations 1997 (as amended) by the Authority, the Service Provider and the administering authority

Admission Body means a transferee admission body for the purposes of regulation 5A of the LGPS Regulations

Advertising means publicity or information intended to attract the public's attention to goods and Service in the form of hanging banners, posters, boards, signage (whether illuminated or not), electronic display boards, and similar as are attached to any Apparatus but excluding Authority Advertising

Affected Party shall have the meaning given to it in the definition of Force Majeure Event

Affiliate means in relation to any person, any holding company or subsidiary of that person or any subsidiary of such holding company and the term Affiliates shall be construed accordingly

Annual Investment Programme means (for the first Payment Year) the programme set out in Schedule 6 (Annual Investment Programme) and thereafter as prepared by the Service Provider in accordance with clause 12.4 (The Annual Investment Programme) as amended from time to time in accordance with clause 12.5 (Amendment of Investment Programmes) and the Review Procedure

APB Distribution means, for the period during which the Additional Permitted Borrowing subsists, an amount equal to the aggregate of all Distributions made during that period up to an amount equal to the principal of the Additional Permitted Borrowing on the first day of that period

Apparatus has the meaning given to it in the Output Specification

Apparatus Licence shall have the meaning given to it in clause 5.3 (Terms of the Apparatus Licence)

Apparatus Survey shall have the meaning given to it in clause 46.1(a) (Final Surveys)

Appendices means the appendices to the Schedules and referred to in the Main Body and/or the Schedules

Appropriate Limit shall have the meaning given to it in clause 36.7 (Cost of Compliance)

Appropriate Representatives means any of the persons whom an employer is required to inform or consult with under the Transfer Regulations, the ARD or any other Legislation

ARD or Acquired Rights Directive means Authority Directive No.77/187/EEC

Assets means the following assets and rights necessary to enable the Authority or a successor contractor to operate and maintain the Service in accordance with this Contract:

(a) any books and records (including operating and maintenance manuals, health and safety manuals and other know-how);

(b) any equipment, materials, spare parts, tools, stocks, consumables and other assets (together with any warranties in respect of assets being transferred) necessary to operate and maintain the Apparatus for a period not exceeding three (3) Months;

(d) any Intellectual Property Rights; and

(e) [any other items]59

Associated Company means in respect of a relevant company, a company which is a Subsidiary, a Holding Company or a company that is a Subsidiary of the ultimate Holding Company of that relevant company, and in the case of the Service Provider shall include [HoldCo and] each of the Shareholders

but excluding any assets and rights in respect of which the Authority is full legal and beneficial owner and the Service Provider Equipment

Attachment(s) means all or any Authority Attachments and/or Third Party Attachments

Assigned Employees shall have the meaning given to it in clause [32.28(a)] [33A.15(a)] (Retendering - Employment Obligations)

Authority Advertising means any Advertising which is related to any activity or function of, or any document produced by, the Authority or any activity or product sponsored by the Authority

Authority Attachment(s) means any Authority owned street or traffic signs or sign plate or notices or other equipment and items of Apparatus authorised by the Authority to be attached to other items (including Apparatus) including (but not limited to):

(a) any street or traffic sign;

(b) dog fouling notices;

(d) notices required pursuant to Legislation;

(e) information notices;

(f) any environmental monitoring equipment;

(g) street name plates;

(h) alcohol prohibition and other by-law signs;

(i) privilege direction signs;

(j) general and local political signage;

(k) Authority Advertising; and

(l) [Advertising]60,

and, for the avoidance of doubt, including Existing Attachments]

Authority Break Point Date means [♦]61

Authority Change means a Change proposed by the Authority in accordance with the Change Protocol

Authority Change Notice shall have the meaning given in the Change Protocol

Authority Default shall have the meaning given to it in clause 43.1 (Definition of Authority Default)

Authority Default Termination Sum means the sum calculated in accordance with paragraph 1.2 of Section 2 of Schedule 13 (Compensation following Authority Default, Authority Voluntary Compensation or Relevant Discharge Terms) as the same may be increased pursuant to paragraph 1.3 of Section 2 of Schedule 13 (Compensation following Authority Default, Authority Voluntary Compensation or Relevant Discharge Terms)

Authority Existing Employee means in relation to any service equivalent to any of the Service (or any part of the Service) all those persons employed by the Authority under a contract of employment (excluding to avoid doubt (without limitation) any person employed by the Authority as an independent contractor or persons employed by any sub-contractor engaged by the Authority) who are wholly or substantially engaged in the provision of that service immediately before the Service Commencement Date

Authority Health and Safety Policy means the document described as the health and safety policy of the Authority such document being in the Agreed Form

Authority Materials shall have the meaning given to it in clause 34.11(b) (Consequences of Termination)

Authority Policies means the policies listed in Appendix J of the Output Specification (Authority Policies)62

Authority Party means any officer, agent or employee of the Authority (including the Authority Project Director and Authority Project Representative) acting in the course of office of his employment, and any subcontractor and its employees employed by the Authority but excluding in each case the Service Provider and any Service Provider Party and Authority Parties shall be construed accordingly

Authority Project Intellectual Property means all Intellectual Property Rights owned by the Authority and subsisting in any Disclosed Information, the Data, the Trade Marks and/or any other materials, information, documents, data and/or know how, provided to or made available by the Authority to any Service Provider Party at any time during the Contract Period

Authority Property shall have the meaning given to it in clause 30.1(b) (Matters indemnified by the Service Provider)

Authority Project Representative means [♦] or such other person as the Authority shall from time to time appoint and notify to the Service Provider in writing

Authority Related Party means any officer, agent, employee of the Authority acting in the course of his office or employment including any sub-contractors supplied by the Authority in relation to the Services

Authority Revenue Share shall have the meaning given to it in clause 27.1 (Revenue Sharing)

Authority Sub-Contractor Direct Agreement means an agreement entered into between the Authority, the Service Provider and a Sub-Contractor in the form set out in Schedule 23 (Sub-Contractor Direct Agreement)

Base Case or Base Case Financial Model means the financial model agreed between the parties prior to the date of this Contract (as updated from time to time in accordance with the terms of this Contract) for the purpose of, amongst other things, calculating the Unitary Charge

Base Date means [♦]

Base Senior Debt Termination Amount means (subject to clause 1.14 (No Increase in Authority Liability)):

(a) all amounts outstanding at the Termination Date, including interest and Default Interest accrued as at that date, from the Service Provider to the Senior Lenders in respect of Permitted Borrowing (other than in respect of Additional Permitted Borrowing); and

(b) all amounts including costs of early termination of interest rate hedging arrangements and other breakage costs, payable by the Service Provider to the Senior Lenders as a result of a prepayment in respect of Permitted Borrowings (other than in respect of Additional Permitted Borrowing), or, in the case of early termination of interest rate hedging arrangements only, as a result of termination of this Contract, subject to the Service Provider and the Senior Lenders mitigating all such costs to the extent reasonably possible:

less, to the extent it is a positive amount, the aggregate of (without double counting in relation to the calculation of the Base Senior Debt Termination Amount or the amounts below):

(i) all credit balances on any bank accounts held by or on behalf of the Service Provider on the Termination Date;

(ii) any amounts claimable on or after the Termination Date in respect of Contingent Funding Liabilities;

(iii) all amounts, including costs of early termination of interest rate hedging arrangements and other breakage costs, payable by the Senior Lenders to the Service Provider as a result of prepayment of amounts outstanding in respect of Permitted Borrowings (other than in respect of any Additional Permitted Borrowing), or, in the case of early termination of interest rate hedging arrangements only, as a result of termination of this Contract; and

(iv) all other amounts received by the Senior Lenders on or after the Termination Date and before the date on which any compensation is payable by the Authority to the Service Provider as a result of enforcing any other rights they may have

Beneficiary shall have the meaning given to it in clause 30.4(a) (Conduct of Proceedings for matters covered by Service Provider's and Authority's indemnities)

Business Day means a day (other than a Saturday or Sunday) on which banks are open for domestic business in the city of London

Capital Expenditure means any expenditure which falls to be treated as capital expenditure in accordance with generally accepted accounting principles in the United Kingdom from time to time63

CDM Regulations means the Construction (Design and Management) Regulations 2007

Cessation Date means any date on which the Contractor or relevant Sub-Contractor ceases to be an Admitted Body other than as a result of the termination of this Contract or because it ceases to employ any Eligible Employees

Certificate of Compliance means:

(a) in respect of the Core Investment Programme means a document signed by the Independent Certifier, to certify that:

(i) all relevant Lighting [Columns] [Points] which are required to be removed pursuant to the Core Investment Programme have been Removed; and

(ii) all relevant new Lighting [Columns] [Points] which are required to be Installed pursuant to the Core Investment Programme have been Installed; or

(b) in respect of the Annual Investment Programme and where permitted by clause 13.4 (Certification by the Service Provider) and/or clause 13.12 (Certificate of Compliance) means the document signed by the Service Provider to certify that new Apparatus have been Installed

and the terms Certified and Certification shall be construed accordingly

Certification Requirements means the requirements which must be satisfied for a contract to be a certified contract for the purposes of the Local Government (Contracts) Act 1997

Change means an Authority Change and/or a Service Provider Change

Change means any change to the Service whether by addition, modification, omission or otherwise made in accordance with this Contract otherwise than such as may be reasonably necessary for the purposes of rectifications of inconsistencies pursuant to clause 10.2 (Rectification of Inconsistencies)

Change in Law means the coming into effect after the date of this Contract of:

(a) Legislation, other than any Legislation which on the date of this Contract has been published:

(i) in a draft Bill as part of a Government Departmental Consultation Paper;

(ii) in a Bill;

(iii) in a draft statutory instrument; or

(iv) as a proposal in the Official Journal of the European Communities;

(b) any Guidance; or

Change in Ownership means:

(a) any sale, transfer or disposal of any legal, beneficial or equitable interest in any or all of the shares in the Service Provider [or Holdco] (including the control over the exercise of voting rights conferred on those shares or the control over the right to appoint or remove directors or the rights to dividends); and/or

(b) any other arrangements that have or may have or which result in the same effect as paragraph (a) above

Change Protocol means that process set out in Schedule 16 (Change Protocol)

CIP Apparatus means the Existing Apparatus which are not Deemed to Comply and which are the subject matter of the Core Investment Programme Service

Code means the Code of Practice on Workforce Matters in Local Authority Service Contracts as currently contained in ODPM Circular 3/03 Annex D

Code Dispute Resolution Procedure means the document set out in Part 3 of Schedule 25 (Code Dispute Resolution Procedure)

Code Obligations means the express obligations of the Service Provider in clause [♦] (Employment Matters)

Codes of Practice means those standard listed in Appendix M of the Output Specification [and for the avoidance of doubt, shall include the Streetlighting Standards]64

Commercially Available Software Package shall have the meaning given to it in clause 34.6 (Computer Data)

Commercially Sensitive Information means the sub set of Confidential Information listed in column 1 of Part 1 (Commercially Sensitive Contractual Provisions) and column 1 of Part 2 (Commercially Sensitive Material) of Schedule 22 (Commercially Sensitive Information) in each case for the period specified in column 2 of Parts 1 and 2 of Schedule 22 (Commercially Sensitive Information)

Committed Stand-by Facility means any committed standby facility that may be agreed under the [Senior Financing Agreements] with the Authority's written consent

Companies Acts means the Companies Act 1985 as amended by the Companies Act 1989

Compensation Event shall mean any breach by the Authority of any of its obligations under this Contract

Compensation Regulations means the Local Government (Discretionary Payments) Regulations 1996 (as amended) and the Local Government (Early Termination of Employment) Discretionary Compensation) (England and Wales) Regulation 2000 (as amended)

Confidential Information means:

(a) information that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would, or would be likely to, prejudice the commercial interests of any person, trade secrets, Intellectual Property Rights and know-how of either party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1988; and

(b) Commercially Sensitive Information

Connections Review means a review by the Service Provider of the terms upon which it receives the Original Non-Contestable Works pursuant to the provisions of Schedule 10 (Original Non-Contestable Works)

Contestable Works means the works upon or connections to the distribution system of a DNO which the DNO allows a third party to undertake by reason of its Standard Licence Conditions issued to it by virtue of the Electricity Act 1989 and the Utilities Act 2000 or by any other reason at law

Contingent Funding Liabilities means any contingent liabilities of the Shareholders or Subordinated Finance Parties in respect of financial obligations owed to the Service Provider and/or the Senior Lenders under the Financing Agreements in relation to the Project which are triggered as a result of or in relation to the termination of this Contract (including, without limitation, any guarantees or letters of credit in respect of deferred equity, subordinated debt or obligations to fund reserve accounts)

Continuation Notice shall have the meaning given to it in clause 44.7 (Termination by Authority)

Contractor Change Notice has the meaning given to it in the Change Protocol

Contract Period means the period commencing on the date of this Contract and ending on the earlier of:

(a) the Expiry Date; and

(b) the Termination Date

Convictions means, other than in relation to minor road traffic offences, any previous prosecutions, convictions, cautions and binding-over orders

Core Investment Programme or CIP means the initial renewal programme in respect of the CIP Apparatus set out in Schedule 5 (Core Investment Programme) as may be amended in accordance with clause 12.3 (Amendment of Core Investment Programme)

Core Investment Programme Period or CIPP means the period commencing on the Service Commencement Date and ending on the completion of the Core Investment Programme

Core Investment Programme Service or CIPS means the removal, demolition, replacement, refurbishment, design, installation, testing, commissioning and completion of all of the CIP Apparatus and/or other Apparatus that do not meet the replacement, design, construction, testing, commissioning and completion of the same in accordance with the requirements of PS1) and all and any activities which the Service Provider undertakes, or must undertake, to discharge its obligations under this Contract in relation to the same

Cumulative Capital Expenditure means the aggregate of:

(a) all Capital Expenditure that has been incurred as a result of each General Change in Law that has come into effect during the Service Period; and

(b) the amount of Capital Expenditure that is agreed, or determined to be required, as a result of a General Change in Law under clause 25.2 (Qualifying Change in Law - Notification Procedure)

Customer Care System has the meaning given to it in the Output Specification

Data means all information, drawings, documentation and databases relating to public street lighting in the [♦] (including, without limitation, all health and safety files) to which the Service Provider has access or which are generated by, or for, it at any time during the Contract Period together with all information and databases relating to the Apparatus which the Service Provider obtains, records, updates, maintains and accesses during the Contract Period for the purpose of the Service and all Disclosed Information, Data Sets and data stored on the Management Information System

Data Set(s) means the minimum data set to be included in the Management Information System, full details of which are set out in Part 4 of the Output Specification

De-Accrued means, when applied to any item of Apparatus, Apparatus which is no longer the responsibility of the Service Provider pursuant to this Contract by reason of an Authority Change under the Change Protocol and/or the application to the provisions of Schedule 15 (Accrual and De-Accrual of Apparatus), and the term De-Accrual shall be construed accordingly

Deemed to Comply means any Apparatus that are required to achieve the Relevant Standards (Deemed to Comply) until replacement [and are listed in Appendix 7 of the Output Specification]65 as updated from time to time in relation to any Lighting Points Accrued pursuant, Schedule 15 (Accrual and De-Accrual of Apparatus) and/or the Change Protocol

Default Interest means any increased margin that is payable to the Senior Lenders or which accrues as a result of any payment due to the Senior Lenders not being made on the date on which it is due

Design Quality Plan means the document entitled [♦] and forming part of Method Statement [♦]

Design Sub-Contractor means [♦] or any replacement appointed to carry out the design of any or all of the Apparatus or any part of the Service

Design Variation Approval shall have the meaning given to it in paragraph 1 of Schedule 7 (Review Procedure)

Direct Losses means all damages, losses, liabilities, claims, actions, costs, expenses (including the cost of legal or professional services, legal costs being on an agent/client paying basis), proceedings, demands and charges whether arising under statute, contract or at common law but, to avoid doubt, excluding Indirect Losses

Directive means the EC Acquired Rights Directive 77/187 as amended

Disclosed Information means all and any materials, documents, drawings, plans or other information relating in any way to the Project made available by the Authority or its agents in connection with the negotiation and preparation of this Contract (and during the procurement process which preceded such negotiation and preparation) including all such materials, documents, drawings, plans, models or other information provided in connection with pre-qualification for that process

Discriminatory Change in Law means a Change in Law, the terms of which apply expressly to:

(a) the Project and not to similar projects procured under the PFI;

(b) the Service Provider and not to other persons; and/or

Disputed Sum shall have the meaning given to it in clause 26.9(b) (Disputed Amounts)

Dispute Resolution Procedure means the procedures set out in Schedule 19 (Dispute Resolution Procedure)

Distributions means:

(a) whether in cash or in kind, any:

(i) dividend or other distribution in respect of share capital;

(ii) reduction of capital, redemption or purchase of shares or any other reorganisation or variation to share capital;

(iii) payments under the Subordinated Financing Agreements (whether of principal, interest, breakage costs or otherwise);

(iv) payment, loan, contractual arrangement or transfer of assets or rights to the extent (in each case) it was put in place after Financial Close and was neither in the ordinary course of business nor on reasonable commercial terms;

(v) the receipt of any other benefit which is not received in the ordinary course of business and on reasonable commercial terms; or

(b) the early release of any Contingent Funding Liabilities, the amount of such release being deemed to be a gain for the purposes of any calculation of Refinancing Gain

DNO means a distribution network operator within the meaning of part 1 of the Electricity Act 1989 as amended by the Utilities Act 2000

DPA means the Data Protection Act 1998

Draft Monthly Payment Report means the draft report the Service Provider shall prepare and deliver to the Authority for each Month containing the information required to enable the calculation of the Monthly Payment in the form set out in Appendix 2 to the Payment Mechanism (or as otherwise agreed by the parties)

Electricity Costs means the cost of electricity supplying the Apparatus for the purposes of this Contract and payable under an Electricity Contract or otherwise (including, without limitation, all fixed and standing charges, all associated metering and data management charges, the climate change levy (and any replacement levy or charge) and any premium charged for any specific terms and conditions related to the supply of electricity to the Apparatus)

Electricity Costs Adjustment or ECA shall have the meaning given to it in paragraph 1.5 of Part 1 of the Payment Mechanism

Eligible Employees means:

(a) the Transferring Employees who are active members of [or eligible to join] the LGPS on a Relevant Transfer Date;

(b) [the Transferring Original Employees who are active members of [or eligible to join] either the LGPS or a broadly comparable scheme provided by their existing employer on a Relevant Transfer Date;

Emergency means any:

(a) event or circumstance which gives rise to the involvement of the emergency Service; or

(b) fire, flood, serious criminal act or other act which creates an immediate risk to public health and/or safety

Employee Costs means:

(a) the costs incurred by the Service Provider (or any relevant sub-contractor) associated with employing any Transferring Staff from the Service Commencement Date to the earlier of (i) the date of dismissal by the Service Provider (or relevant sub-contractor as appropriate) by reason of redundancy under clause 32A.2 (Transfer of Employees) of this Contract or, (ii) forty five (45) days from the Service Commencement Date; and

(b) any redundancy payment, notice pay or payment in lieu of notice, and any accrued but untaken holiday entitlements due to any Transferring Staff and which are required by Legislation or by contract to be made to such Transferring Staff and which arise as a result of their dismissal by reason of redundancy under clause 32A.2 (Transfer of Employees) of this Contract where notice is given within two (2) months of the Service Commencement Date

Employee Liability Information means the information which a transferor is obliged to notify to a transferee pursuant to Regulation 11(2) of TUPE regarding any person employed by him who is assigned to the organised grouping of resources or employees which is the subject of the Relevant Transfer and also such employees as fall within Regulation 11(4) of TUPE

Environmental Information Regulations means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such regulations

Equal Pay Claim means any claim under the provisions of the Equal Pay Act 1970 or any directly applicable law of the European Union including, for the avoidance of doubt, the Treaty of the European Union

Estimated Change in Project Costs means in relation to clause 21.5 (Procedure - Compensation Events), clause 25 (Change in Law) and the Change Protocol the aggregate of any estimated increase in installation costs, operating costs and financing costs less the aggregate of any estimated reduction in installation costs, operating costs and financing costs

euro or € means the single or unified European currency (whether known as the "euro" or otherwise) adopted as their lawful currency by certain member states of the European Union in accordance with:

(a) the Treaty of the European Union; and

(b) any legislative measures for the introduction of, changeover to or operation of such currency,

being in part the implementation of the third stage of Economic and Monetary Union as contemplated in the Treaty of the European Union

Excusing Cause shall mean any of the following events:

(a) where a Necessary Consent to fix Apparatus to a structure is not obtained and:

(i) the Service Provider has complied with its obligations under clause 18.2 (Necessary Consents for fixing Apparatus) and clause 18.3 (Process to be followed where consent not obtained); and

(ii) the Excusing Cause shall only be for the period specified in clause 18.4 (Excusing Cause);

(b) where an Owner required that Apparatus be removed from a structure permanently and:

(i) the Service Provider has complied with its obligations under clause 18.6(b) (Owner's request to remove Apparatus); and

(ii) the Excusing Cause shall only be for the period set out in clause 18.4 (Excusing Cause);

(c) where the Service Provider requires access to land off the highway which is outside the control of the Authority for the performance of the Service and:

(i) the Service Provider has complied with its obligations under clause 19.1 (Service Provider to Secure Access) and clause 19.2 (Notification); and

(ii) the Excusing Cause shall only be for the period set out in clause 19.4 (Excusing Cause);

(d) where there are Relevant Highway Works of which the Authority has given notice pursuant to clause 17.3 (Public Highway Works) and:

(i) the Service Provider has complied with its obligations in clause 17.6 (Obligation to Provide Service); and

(ii) the Excusing Cause shall only be for the period between the Temporary Suspension Start Date and Temporary Suspension end Date;

(e) the occurrence of the circumstances described in clause 17.5 (Failure to Issue a Notice) and:

(i) the Service Provider has complied with its obligations under clause 17.5 (Failure to Issue a Notice); and

(ii) the Excusing Cause shall only be for the period of the carrying out of the works;

(f) any failure of, or disruption to, power occurring to the electricity distribution system belonging to a DNO (excluding the low voltage cable which supplies the Apparatus);

(g) during the Core Investment Programme Period only, the occurrence of circumstances where the Service Provider cannot Remove CIP Apparatus as a result of works which are being carried out on a Public Highway which works:

(i) require entry in the Street Works Register; and

(ii) have not been entered in the Street Works Register; and

(iii) materially affect the ability of the Service Provider to progress the Core Investment Programme Service

Existing Apparatus means Apparatus which:

(a) exists and which has been installed and commissioned as at the Service Commencement Date; and

(b) is owned by the Authority and maintained by the Authority or its sub-contractors at the Service Commencement Date,

including, without limitation, the Apparatus identified in the Inventory

Existing Attachments means an Attachment which:

(a) exists and which is attached to another item in the [Borough] as at the Service Commencement Date; and

(b) is owned by the Authority or a Third Party Authority and maintained by the Authority or a Third Party Authority or one of their respective sub-contractors at the Service Commencement Date,

including, without limitation, the Attachments identified in the Inventory

Expiry Date means the twenty-fifth (25th) anniversary of the Planned Service Commencement Date

Fees Regulations means The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004

Final Employee List shall have the meaning given to it in clause 32.8 (TUPE and Employment Matters)

Final Surveys means the Apparatus Survey and the Management Information Survey

Final Warning Notice shall have the meaning given to it in clause 41.8(b) (Persistent Breach)

Financial Close has the meaning given to it in the Senior Financing Agreements

Financing Agreements means all or any of the agreements or instruments entered into or to be entered into by the Service Provider or any of its Associated Companies relating to the financing of the Project (including the Initial Financing Agreements and any agreements or instruments to be entered into by the Service Provider or any of its Associated Companies relating to the rescheduling of their indebtedness or any Refinancing)

Financing Default means [♦]66

First Contractor means the person with whom the Authority initially contracted for the provision of services which are similar to the Service

First Employee List means the information set out in Part 1 of Schedule 25 (First Employee List)

FOIA means the Freedom of Information Act 2000 and any subordinate legislation (as defined in Section 84 of the Freedom of Information Act 2000) made under the Freedom of Information Act 2000 from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such Act

FOIA Code shall have the meaning given to it in clause 36.8 (FOIA Code)

Force Majeure Event means the occurrence after date of this Contract of:

(a) war, civil war, armed conflict or terrorism; or

(b) nuclear, chemical or biological contamination unless the source or cause of the contamination is the result of any actions or breach of the Service Provider or any Service Provider Party; or

which directly causes either party (the Affected Party) to be unable to comply with all or a material part of its obligations under this Contract

Future Service Provider has the meaning given in clause 32.19 (Service Provider Indemnities)

General Change in Law means a Change in Law which is not a Discriminatory Change in Law or a Specific Change in Law

Good Industry Practice means using standards, practices, methods and procedures (as practised in the United Kingdom) and conforming to Legislation and exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced service provider, manager, operator or other person (as the case may be) engaged in a similar type of undertaking as under this Contract under the same or similar circumstances

Guaranteed Income means [♦]67

Guidance means any applicable guidance or direction with which the Service Provider is bound to comply

H&S Conviction shall have the meaning given to it in clause 41.2(n) (Service Provider Default)

Health and Safety Regime means the Health & Safety at Work etc Act 1974 (and associated regulations), the Fire Precautions Act 1971, the Environmental Protection Act 1990, the Water Industry Act 1991, the Water Resources Act 1991 and any similar or analogous health, safety or environmental legislation in force from time to time

Holdco means [insert details of the Service Provider's 100% holding company]

Holding Company [has the meaning given to it in section 1159 of the Companies Act 200668]

Indemnifier shall have the meaning given to it in clause 30.4 (Conduct of proceedings for matters covered by Service Provider's and Authority's indemnities)

Independent Certifier means [♦] or any replacement appointed by the parties pursuant to this Contract

Indirect Losses means loss of profits, loss of use, loss of production, loss of business, loss of business opportunity, or any claim for consequential loss or for indirect loss of any nature but excluding any of the same that relates to loss of revenue under this Contract

Information shall have the meaning given to it under Section 84 of the Freedom of Information Act 2000 or the meaning given to environmental information under Section 2 of the Environmental Information Regulations as may be appropriate to the circumstances

Initial Financing Agreements means the Financing Agreements in place at the date of this Contract as follows:

[♦]

copies of which have been initialled by the parties for the purposes of identification

Inspection Notice shall have the meaning given in clause 13.1(b) (Completion)

Installation means in respect of the Core Investment Programme means the installation of Lighting [Columns] [Points] in accordance with the requirements of paragraph 8 of Method Statement 16 (Commissioning) and PS1 of the Output Specification and the terms Install and Installed shall be construed accordingly

Insurance Term means any terms and/or conditions required to be included in a policy of insurance by clause 31.1 (Insurance) and/or Schedule 21 (Insurance Matters) but excluding any risk

Intellectual Property Rights means all intellectual property rights of whatever nature subsisting in any part of the world at any time including (without limitation) patents, registered designs and trade marks (whether registered or not) and applications for any of the foregoing, copyright, database rights, design right, rights in and information to confidential and protection similar to any of the foregoing subsisting in any part of the world at any time

Intended Service Commencement Date shall have the meaning given to it in clause 2.6(a) (Notice to the Authority)

Interim Project Report means [♦]69

Intervening Contract means a contract with the Authority for the provision of services which are similar to the Service, at times after they were provided under a contract with the First Contractor and before they are to be provided by the Service Provider

Introduction of the euro means the introduction into the United Kingdom of the euro as a substitute for Sterling, the economic and/or commercial consequences thereof and any event or matter associated or connected therewith

Inventory means the Authority's inventory of Existing Apparatus as at the Service Commencement Date70

Investment Programmes means the Core Investment Programme and the Annual Investment Programme

Irrecoverable VAT shall have the meaning given to it in clause 28.4 (Irrecoverable VAT)

Legislation means:

(a) any Act of Parliament or subordinate legislation within the meaning of Section 21(1) Interpretation Act 1978;

(b) any exercise of the Royal Prerogative; and

in each case in the United Kingdom

Licensed Purposes means:

(a) the maintenance, management, provision, carrying out, replacement and/or operation of the Apparatus and/or the Service; and/or

(b) the maintenance, management, provision, carrying out, replacement and/or operation of Service analogous to the Service but provided by a third party; and/or

Lighting Columns means all columns comprised in the Apparatus including luminaires, lamps, electrical circuits and components, control devices, wiring and components, brackets, cut out and electricity connection and numbering

Lighting Points has the meaning given to it in the Output Specification

Lighting Scheme has the meaning given to it in clause 13.1(a) (Completion)

Local Government Pension Scheme or LGPS means the Local Government Pension Scheme established pursuant to regulations made by the Secretary of State in exercise of powers under sections 7 and 12 Superannuation Act 1972 as amended from time to time

Long Stop Date means the date falling three (3) Months after the Planned Service Commencement Date

Main Body means the recitals, clauses 1 to 66 (inclusive) and the attestation and testimonium provisions to this Contract

Management Information System and MIS means the electronic system to be maintained by the Service Provider in accordance with the Output Specification for collecting, maintaining and reporting all data in connection with the provision of the Service and including, but not limited to, all data comprised in the Data Sets

Management Information System Survey shall have the meaning given to it in clause 46.1(b) (Final Surveys)

Method Statements means the method statements prepared by the Service Provider contained at Schedule 3 (Method Statements)

Milestone means a milestone as set out in rows 1 to 10 (inclusive) of Table 1 in clause 12.7 (Milestones) and Milestones shall be construed accordingly

Milestone Completion Date (Projected) means a date as set out in rows 1 to 10 (inclusive) of column 2 of Table 1 in clause 12.7 (Milestones) as the same may be extended from time to time in accordance with this Contract

Milestone Default Termination Points or MDTP means default termination points which may be awarded to the Service Provider by the Authority in accordance with clause 12.10 (Failure to complete Milestones on time) and paragraph 3.1 of the Payment Mechanism

Month means any calendar month during the Contract Period, save that the first Month shall start on the Service Commencement Date and end on the last day of the calendar month in which the Service Commencement Date falls and the final Month shall start on the first day of the Month in which this Contract expires or terminates and end on the earliest of the Expiry Date or Termination Date and the term Months shall be construed accordingly

Monthly Payment Meeting shall have the meaning given to it in clause 26.6 (Monthly Payment Meeting)

Monthly Payment means the amount calculated in accordance with paragraph 2.5 of Part 1 of the Payment Mechanism

Monthly Unitary Charge means the amount calculated in accordance with paragraph 2.3 of Part 1 of the Payment Mechanism

National Contracts means [relevant national agreements in force as at the date of signing this Contract]

Necessary Consents means all permissions, consents, approvals, certificates, permits, licences and authorisations (including, where appropriate, any licence or consent under NRSWA) of a Relevant Authority which are required for the performance of any of the Service Provider's obligations under this Contract

Net Present Value means the aggregation of the discounted values calculated as of the estimated date of the Refinancing of each of the relevant projected Distributions, in each case discounted using the Threshold Equity IRR

Network Board means the board convened and operated in accordance with Schedule 18 (The Network Board and Partnering Facilitator)

New Apparatus means all Apparatus (including, for the avoidance of doubt, Replacement CIP Apparatus) but excluding the Existing Apparatus

New Contractor means any successor contractor who will provide a service the same or similar to the Service from the Expiry Date or Termination Date (as the case may be)

New Employees means those new employees employed by the Service Provider to provide the Service who will be working alongside the Transferring Employees

New Employer shall have the meaning given to it in clause 34A.11 (Transfer of Employment of Transferring Employees)

Non-Contestable Works means any works upon or connections to the distribution system of a DNO, which are not Contestable Works

Non-illuminated Signs (Sign Plate) shall have the meaning given to it in the Output Specification

NRSWA means The New Roads and Street Works Act 1991

Option Period shall have the meaning given to it in clause 31.4(b)(v) (Uninsurable Risks)

Original Employee means those employees of the Authority who as a result of the application of the Regulations, in relation to what was done for the purposes of carrying out the contract between the Authority and the First Contractor, became employees of someone other than the Authority

Original Senior Commitment means the amount committed under the Senior Financing Agreements as at Financial Close (as adjusted to take into account any Qualifying Variation)

Output Specification means the specification prepared by the Authority for the provision of the Service as set out in Schedule 2 (Output Specification)

Outstanding Works shall have the meaning given to it in clause 46.5 (Rectification Work)

Owner shall have the meaning given to it in clause 18.2(a) (Necessary Consents for fixing Apparatus)

Part A Method Statements means the following Method Statements:

(a) [List those Method Statements that are legally binding]

Part B Method Statements means the following Method Statements:

(a) [List those Method Statements that are not legally binding]

parties means the Authority and the Service Provider

Past Service Reserve means the actuarial value, calculated on the basis that the provisions of Section 62 of the Pensions Act 1995 applies directly to the Local Government Pension Scheme or Contractor Scheme (the Transferring Scheme), of the aggregate of the benefits, whether immediate, prospective or contingent, payable under the Transferring Scheme to and in respect of each transferring member, his spouse and dependants, by reference to pensionable service in the Transferring Scheme, but making proper allowance for projected increases in the rate of pensionable salary of each transferring member from the cessation of pensionable service to the expected date of withdrawal, retirement or death and increases (whether or not pursuant to a legal obligation) in pensions in payment using demographic and actuarial assumptions which are overall no less conservative than those adopted for the most recent funding valuation of the Transferring Scheme

Payment Mechanism means the requirements of Schedule 8 (Payment Mechanism)

Payment Year means a year commencing (unless the public sector financial year shall be required to be amended) on 1 April in each calendar year and expiring on 31 March in the succeeding year provided that the first Payment Year shall commence on the Service Commencement Date and shall expire on the following 31 March and the last Payment Year shall commence on the final 1 April of the Contract Period and shall expire on the earlier of the Expiry Date or Termination Date

Pension Regulation shall have the meaning given to it in clause 34A.2(b) (Admission Agreement)

Pension Scheme shall have the meaning given to it in clause 34A.3 (Alternative Pension Scheme)

Performance Standard or PS means the description of the Service and the standards and requirements of the Service set out in the Output Specification

Permitted Borrowing means, without double counting, any:

(a) advance to the Service Provider under the Senior Financing Agreements [provided that such advance is not made under any Committed Standby Facility];

(b) Additional Permitted Borrowing;

(c) advance to the Service Provider under any Committed Stand-by Facility which is made solely for the purpose of funding any cost overruns, increased expenses or loss of revenue which the Service Provider incurs, provided that such funds are not used in substitution for other sources of committed funding designated for those purposes; [and]

(d) interest and, in respect of the original Senior Financing Agreements only (as entered into at the date of this Contract) (prior to any subsequent amendment), other amounts accrued or payable under the terms of such original Senior Financing Agreements,

except where the amount referred to in paragraphs (a) to (d) is or is being used to fund a payment of Default Interest on any Additional Permitted Borrowing

Permitted Purposes shall have the meaning given to it in clause 34.7 (Licence to use Trade Marks and Data)

Persistent Breach means a breach for which a Final Warning Notice has been issued which has continued for more than [♦] days or recurred in [three (3)] or more months within the six (6) Months after the date on which such Final Warning Notice is served on the Service Provider

Personal Data means personal data as defined in the DPA which is supplied to the Service Provider by the Authority or obtained by the Service Provider in the course of performing the Service

Personnel means the employees, servants, agents, sub-contractors or other representatives, of the Service Provider, or of any sub-contractor, involved directly, or indirectly, in the provision of the Service

PFI means the Government's Private Finance Initiative or any similar or replacement initiative

Planned Service Commencement Date means [fixed date on which Service Commencement is planned to occur] or such other date as the parties may agree

Post Core Investment Programme Period or PCIPP means the period from expiry of the Core Investment Programme Period until the Expiry Date (or if earlier the Termination Date)

Pre-Refinancing Equity IRR means the nominal post-tax (i.e. post-tax with respect to the Service Provider, pre-tax with respect to the Shareholders) Equity IRR calculated immediately prior to the Refinancing

Principal shall have the meaning given to it in clause 28.5(a) (Sub-Contractors in the Construction Industry Scheme)

Prohibited Act means:

(a) offering, giving or agreeing to give to any servant of the Authority any gift or consideration of any kind as an inducement or reward:

(i) for doing or not doing (or for having done or not having done) any act in relation to the obtaining or performance of this Contract or any other contract with the Authority; or

(ii) for showing or not showing favour or disfavour to any person in relation to this Contract any other contract with the Authority;

(b) entering into the Contract or any other contract with the Authority in connection with which commission has been paid or has been agreed to be paid by the Service Provider, or on its behalf or to its knowledge, unless, before the relevant contract is entered into particulars of any such commission and of the terms and conditions of any such contract for the payment thereof have been disclosed in writing to the Authority;

(i) under the Prevention of Corruption Acts 1889-1916;

(ii) under Legislation creating offences in respect of fraudulent acts; or

(iii) at common law, in respect of fraudulent acts in relation to this Contract or any other contract with the Authority; or

(d) defrauding or attempting to defraud or conspiring to defraud the Authority

Project means the design, installation, operation and maintenance of street lighting and associated apparatus and attachments in the Borough as contemplated by this Contract (including the carrying out of the Service) for a period of twenty five (25) years

Project Documents means the agreements entered into by the Service Provider for the performance of its obligations under this Contract which are listed below:

(e) each of the Sub-Contracts;

(f) each of the contracts entered into by a Sub-Contractor and a Design Sub-Contractor; and

(g) [any others?]71;

copies of which have been initialled by the parties for the purposes of identification and a Project Document shall mean any of them

Proposed Workforce shall have the meaning given to it in clause 32.10(a) (Workforce Information)

Qualifying Change in Law means:

(a) a Discriminatory Change in Law;

(b) a Specific Change in Law;

which was not foreseeable at the date of this Contract; and/or

(d) a change to the Balancing and Settling Code Procedure (BSCP 520) or any successor procedure which specifically relates to the re-rating of electricity consumption of any item of Apparatus

Qualifying Variation means either:

(a) a change in respect of which either an Authority Notice of Change or a Service Provider Change Notice has been served and, in the case of:

(i) an Authority Change Notice, the Authority has confirmed the change (as defined in the Change Protocol and, where the Service Provider is not funding all or part of the required Capital Expenditure, the Authority has agreed to meet all or the remaining part (as appropriate) of such Capital Expenditure; and

(ii) a Service Provider Change Notice, the Change has been accepted by the Authority; or

(b) a Qualifying Change in Law,

and in respect of which any documents or amendments to this Contract or any Project Document which are required to give effect to such Change or Qualifying Change in Law have become unconditional in all respects

Quality Manager means [♦] or such person appointed pursuant to clause 14.5(a) (Quality Manager)

Quality Plans means:

(a) the Service Quality Plan; and

(b) the Design Quality Plan; and

(c) other quality plans required pursuant to clause 14 (Quality Assurance), or one or more of them, as the context may require

Recipient shall have the meaning given to it in clause 28.3(b) (Value Added Tax)

Refinancing means:

(a) any amendment, variation, novation, supplement or replacement of any Financing Agreement (other than any Subordinated Financing Agreement);

(b) the exercise of any right or the grant of any waiver or consent under any Financing Agreement (other than any Subordinated Financing Agreement);

(c) the disposition of any rights or interests in, or the creation of any rights of participation in respect of, the Financing Agreements (other than the Subordinated Financing Agreements) or the creation or granting of any other form of benefit or interest in either the Financing Agreements (other than the Subordinated Financing Agreements) or the contracts, revenues or assets of the Service Provider whether by way of security or otherwise; or

(d) any other arrangement put in place by the Service Provider or another person which has an effect which is similar to any of paragraphs (a) to (c) (inclusive) or which has the effect of limiting the Service Provider's or any Associated Company's ability to carry out any of paragraphs (a) to (c) (inclusive)

Refinancing Gain means an amount equal to the greater of zero and ((A - B) - C), where:

A	=	the Net Present Value of the Distributions projected immediately prior to the Refinancing (taking into account the effect of the Refinancing and using the Base Case as updated (including as to the performance of the Project) so as to be current immediately prior to the Refinancing) to be made to each Relevant Person over the remaining term of the Contract following the Refinancing;
B	=	the Net Present Value of the Distributions projected immediately prior to the Refinancing (but without taking into account the effect of the Refinancing and using the Base Case as updated (including as to the performance of the Project) so as to be current immediately prior to the Refinancing) to be made to each Relevant Person over the remaining term of the Contract following the Refinancing; and
C	=	any adjustment required to raise the Pre-Refinancing Equity IRR to the Threshold Equity IRR

Reinstatement Plan shall have the meaning given to it in clause 31.2(a) (Reinstatement)

Reinstatement Works shall have the meaning given to it in clause 31.2(a) (Reinstatement)

Relevant Authority means any court with the relevant jurisdiction and any local, national or supra-national agency, inspectorate, minister, ministry, official or public or statutory person of the government of the United Kingdom or of the European Union

Relevant Employees means the employees who are the subject of a Relevant Transfer

Relevant Highway Works shall have the meaning given to it in clause 17.3 (Public Highway Works)

Relevant Incident shall have the meaning given to it in clause 31.2 (Reinstatement)

Relevant Payment shall have the meaning given to it in clause 31.4(b)(v) (Uninsurable Risks)

Relevant Person means a Shareholder and any of its Affiliates

Relevant Service Transfer [only applicable if phased Service implementation]

Relevant Standards shall have the meaning given to it in the Output Specification

Relevant Standards (Deemed to Comply) shall have the meaning given to it in the Output Specification

Relevant Transfer means a relevant transfer for the purposes of TUPE

Relevant Transfer Date means the date on which an Eligible Employee transfers to the Service Provider and/or one or more Sub-Contractors by virtue of a Relevant Transfer

Relief Event means any of the following events:

(a) fire, explosion, lightning, storm, tempest, flood, bursting or overflow of water tanks, apparatus or pipes, ionising radiation (to the extent it does not constitute a Force Majeure Event), earthquakes, riot and civil commotion;

(b) failure by any Statutory Undertaker, utility company, local authority (but excluding for the avoidance of doubt the Authority as a purchaser) or other like body, to carry out works or provide Service but not including the Service Provider or a Sub-Contractor or any failure by a DNO to carry out any Contestable Works in connection with the Service or any other failure to carry out any obligation of the Service Provider under this Contract;

(d) any failure or shortage of power, fuel or transport save to the extent that such failure or shortage constitutes an Excusing Cause within paragraph (f) of that definition;

(e) any blockade or embargo which does not constitute a Force Majeure Event;

(f) any:

(i) official or unofficial strike;

(ii) lock out;

(iii) go-slow; or

(iv) other dispute,

generally affecting the street lighting industry or a significant sector of it (and to avoid doubt including the DNO);

(g) failure by a DNO to carry out Non-Contestable Works or services within the meaning of the Electricity Act 1999;

(h) underground cable faults in respect of cables which do not form part of the Apparatus and are not otherwise the responsibility of the Service Provider under this Contract;

(i) the discovery of fossils, antiquities or unexploded ordnance about or on the land on which the Apparatus is (or is to be) erected,

unless any of the events listed in paragraph (a) to (i) inclusive, arises (directly or indirectly) as a result of any wilful act or wilful default of the Service Provider or any Service Provider Party

Removed means any CIP Apparatus [CIP Apparatus (Illuminated Traffic Signs)] which are removed from the Service by the Service Provider as part of the Core Investment Programme comprising, as appropriate, the disconnection from the electricity supply, physical removal of the CIP Apparatus and any necessary reinstatement of surface finishes or building other than Snagging Items and the term Removal shall be construed accordingly73

Remuneration Costs shall have the meaning given to it in clause 32.10(a) (Workforce Information)

Reorganisation Costs shall have the meaning given to it in clause 32.10(a) (Workforce Information)

Replacement CIP Apparatus means the new Apparatus to be Installed by the Service Provider during the Core Investment Programme Period to replace the CIP Apparatus as set out in the Core Investment Period Programme

Request for Information shall have the meaning set out in the FOIA or the Environmental Information Regulations as relevant (where the meaning set out for the term request shall apply)

Requesting Party shall have the meaning given to it in clause 37.5 (Provision of Information)

Required Action shall have the meaning given to it in clause 39.3 (Required Action)

Required Insurances means those insurances set out in Part 1 of Schedule 21 (Insurance Matters)74

Required Standard shall have the meaning given to it in clause 46.4 (Results of Final Surveys)

Restricted Share Transfer means the transfer of shares or any interest in shares of the Service Provider to any person whose business is 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

Retendering Information shall have the meaning given to it in clause 32.22(a) (Retendering - Employment Obligations)

Retention Fund Account shall have the meaning given to it in clause 46.1(c) (Final Surveys)

Return Date shall have the meaning given in clause [32.26 (Transfer of Employment on Expiry/Termination] / [32A.6 (Termination of Contract)]

Returning Employees shall have the meaning given to it in clause [32.26 (Transfer of Employment on Expiry/Termination] / [32A.6 (Termination of Contract)]

Revenue means HM Revenue and Customs (or any other successor body)

Revenue Sharing Equity IRR means the nominal post Service Provider tax pre shareholder tax blended rate of return to a shareholder or any of its Affiliates from the Service Commencement Date to the final day of the previous Payment Year having regard to Distributions made

Review Procedure means the procedure set out in Schedule 7 (Review Procedure)

Reviewable Item means a Reviewable A Item and/or a Reviewable B Item

Reviewable A Item means any of the following:

(a) any material change to the Core Investment Programme prepared in accordance with clause 12.5 (Amendment of Investment Programmes);

(b) each draft Annual Investment Programme;

(d) any amendment of a Method Statement which reduces overall energy consumption; and

(e) any amendment of a Quality Plan

Reviewable B Item means any of the following:

(a) Design Data;

(b) any amendment to an Annual Investment Programme; and

Revised Senior Debt Termination Amount means, subject to clause 1.14 (No Increase in Authority Liability):

(a) all amounts outstanding at the Termination Date, including interest and (other than in respect of Additional Permitted Borrowing) Default Interest accrued as at that date, from the Service Provider to the Senior Lenders in respect of Permitted Borrowing; and

(b) all amounts including costs of early termination of interest rate hedging arrangements and other breakage costs, payable by the Service Provider to the Senior Lenders as a result of a prepayment in respect of Permitted Borrowing, or, in the case of early termination of interest rate hedging arrangements only, as a result of termination of this Contract, subject to the Service Provider and the Senior Lenders mitigating all such costs to the extent reasonably possible,

less, to the extent it is a positive amount, the aggregate of (without double counting in relation to the calculation of the Revised Senior Debt Termination Amount or the amounts below):

(i) all credit balances on any bank accounts on the Termination Date;

(ii) any amounts claimable on or after the Termination Date in respect of Contingent Funding Liabilities;

(iii) all amounts, including costs of early termination of interest rate hedging arrangements and other breakage costs, payable by the Senior Lenders to the Service Provider as a result of prepayment of amounts outstanding in respect of Permitted Borrowing), or, in the case of early termination of interest rate hedging arrangements only, as a result of termination of this Contract,

(v) all APB Distributions

RPI means the specific index as published by the Office for National Statistics on a monthly basis for RPIX, failing such publication or in the event of a fundamental change to the index, such other index as the parties may agree, or such adjustments to the index as the parties may agree (in each case with the intention of putting the parties in no better nor worse position than they would have been had the index not ceased to be published or the relevant fundamental change not been made) or in the event that no such agreement is reached, as may be determined in accordance with the Dispute Resolution Procedure

Schedule means a Schedule to this Contract referred to in the Main Body and numbered 1 to 25 (inclusive) together with the parts thereof

Senior Debt means the financing provided by the Senior Lenders under the Senior Financing Agreements

Senior Financing Agreements means [♦] as at the date of this Contract or as amended, with the prior approval of the Authority, pursuant to clause 1.14(a) (No Increase in Authority Liability)

Senior Lender means a person providing finance to the Service Provider under the Senior Financing Agreements

Senior Lender's Direct Agreement means the direct agreement dated on or about the date of this Contract (in the form set out in Schedule 24 (Senior Lender's Direct Agreement)), made between the Authority, the Service Provider and the Agent

Service means the services which are necessary for the Service Provider to undertake in order to comply with the Output Specification, the Method Statements and the other provisions of this Contract, including without limitation:

(a) the removal, demolition, repair or replacement of Apparatus; and

(b) the design, construction, testing, commissioning, maintenance, cleaning and inspection of Apparatus

Service Commencement Date means the date on which the Service Provider notifies the Authority in accordance with clause 2.4 (Service Provider to Demonstrate Compliance) or clause 2.6 (Notice to Authority) (as the case may be) that the requirements set out in clauses 2.6(a) to 2.6(c) (inclusive) have been satisfied and the Authority accepts such notification

Service Default Termination Points or SDTP means a default termination point accrued in accordance with paragraphs 6.2 and 6.3 of Part 1 of the Payment Mechanism

Service Period means the period specified in clause 2.2 (Expiry of this Contract)

Service Provider Admission Agreement an admission agreement entered into in accordance with Regulation 5A of the LGPS Regulations 1997 (as amended from time to time) by the Administering Authority, the Authority and the Service Provider or a relevant Sub-Contractor (as appropriate)

Service Provider Change means a Change proposed by the Service Provider pursuant to the Change Protocol

Service Provider Change Notice has the meaning given to it in the Change Protocol

Service Provider Default shall have the meaning given to it in clause 41.2 (Service Provider Default)

Service Provider Equipment shall mean all equipment, plant and other things owned by or leased to the Service Provider and used exclusively for the purposes of providing the Service whether in relation to the installation or maintenance of Apparatus or otherwise but excluding the Assets

Service Provider Health and Safety Manual means the document described as the Service Provider health and safety manual, such document being in the Agreed Form

Service Provider Materials means all or any programmes, software, code, databases, data, materials, works (whether literary, artistic or otherwise), know how and/or information which are used from time to time by the Service Provider and/or any Service Provider Party, or are otherwise relevant to the maintenance, management, provision, replacement, carrying out and operation of the Apparatus and/or the Service

Service Provider Party means any officer, employee or agent of the Service Provider, a Sub-Contractor, and any contractor or person employed or engaged by any of them in relation to the Service other that the Authority or any Authority Party

Service Provider Share means the percentage figure corresponding to that part of the Cumulative Capital Expenditure at the relevant time, as shown in the first column of the table set out in clause 25.5 (Cost Sharing Schedule)

Service Quality Plan means the document entitled [♦] and forming part of the Method Statement [♦]

Service Transfer Date means [the whole of the services or any of them to be provided by the Contractor pursuant to this agreement or such of them as may from time to time remain the subject of this agreement]

Shareholder means any person from time to time holding share capital in the Service Provider (or Holdco)

Snagging Items means the following minor defects affecting the relevant Apparatus:75

(a) final painting required (where weather permits) or paintwork is not free from damage, streaks or runs or has not been applied uniformly;

(b) grass seed reinstatement required where non-seasonal;

(d) lock to Lighting Column doors has not been greased;

(e) damage to Lighting Column attachments;

(f) holes in Lighting Columns for wiring have not been adequately sealed;

(g) Lantern canopy has installation blemishes; and/or

(h) Lantern bowl has installation blemishes

Snagging List means a list of Snagging Items provided by the Independent Certifier or the Service Provider (as the case may be)

Specific Change in Law means any Change in Law which specifically refers to the provision of street lighting installation, operation and maintenance Service the same as or similar to the Service or to the holding of shares in companies whose main business is providing street lighting installation, operation and maintenance Service the same as or similar to the Service

Specified Period shall have the meaning given to it in clause 46.4(b) (Results of Final Surveys)

Standard Rate means a [insert rate of interest equal to that payable by the Service Provider pursuant to the Financing Agreements]

Statutory Deduction shall have the meaning given to it in clause 28.5(a) (Sub-Contractors in the Construction Industry Scheme)

Statutory Undertakers shall have the meaning given to it in The New Roads and Street Works Act 1991

Step-In means the action taken by the Authority to remedy or secure the remedy of a Step-In Event

Step-In Event means those events referred to in clause 39.1 (Step-In Events)

Streetlighting Standards76 means any European and British standards (or updates to those standards) for road lighting issued from time to time including:

(a) BS EN 13201;

(b) BS 5489;

(d) BS 7671 requirements for electrical installations;

(e) BS EN 40 for lighting columns;

(f) BS EN 60598 for Luminaires;

(g) BS EN 12899-1 for traffic signs;

(h) prEN 12899-2 for illuminated traffic bollards;

(i) BS 873 for Belisha Beacons, centre island beacons and flashing school warning signs

Sub-Contract means the contract entered into between the Service Provider and a Sub-Contractor such document being in the Agreed Form

Sub-Contractor means each of the counterparties of the Service Provider to the Project Documents or any person engaged by the Service Provider from time to time as may be permitted by this Contract to procure the provision of the Service (or any part of the Service). References to sub-contractors means sub-contractors (of any tier) of the Service Provider

Sub-Contractor Direct Agreement means each and any agreement entered into between the Authority, the Service Provider and a Subcontractor in the agreed form set out in Schedule 23 (Sub-Contractor Direct Agreement) or substantially in that form or such other form as is agreed between the parties

Sub-Contractor Legislation shall have the meaning given to it in clause 28.5(a) (Sub-Contractors in the Construction Industry Scheme)

Subordinated Financing Agreement means [♦] as at the date of this Contract or as amended with the prior written approval of the Authority

Subsidiary has the meaning given to it in Section 1159 of the Companies Act 200077

Supplier shall have the meaning given to it in clause 28.3(b) (Value Added Tax)

Tax or Taxation means any kind of tax, duty, levy or other charge (other than VAT) whether or not similar to any in force at the date of this Contract and whether imposed by a local, governmental or other Relevant Authority in the United Kingdom or elsewhere

Temporary Suspension End Date shall have the meaning given to it in clause 17.3(b)(iii) (Public Highway Works)

Temporary Suspension Start Date shall have the meaning given to it in clause 17.3(b)(ii) (Public Highway Works)

Termination Date means any date of early termination of this Contract in accordance with the provisions of this Contract

Termination Notice means a notice terminating this Contract served by either party under clause 31.4 (Uninsurable Risks), clause 41 (Termination by the Authority), clause 42 (Termination for Corrupt Gifts and Fraud), clause 43 (Termination by the Service Provider) or clause 44 (Termination following a Force Majeure Event)

Termination Sum means any compensation payable by the Authority to the Service Provider on an early termination of the Contract under Schedule 13 (Compensation on Termination) (including, for the avoidance of doubt, the Authority Default Termination Sum), excluding the Adjusted Highest Compliant Tender Price

Third Party Attachments means attachments owned by a Third Party Authority who has been authorised by the Authority to affix attachments to Apparatus, including (but not limited to):

(a) political signage;

(b) fire hydrant signs;

(d) any special event signage or advance direction signage;

(e) direction signage (including AA/RAC signs);

(f) neighbourhood watch signs; and

(g) blind persons referencing point,

provided that Third Party Attachments shall not include any electronic or electrical connections except those which constitute Third Party Attachments as at the Service Commencement Date

Third Party Authority means a third party statutory authority, a statutory undertaker or other persons specified by the Authority

Threshold Equity IRR means [insert number]78%

Total shall have the meaning given to it in clause 12.7 (Milestones)

Total Income means the sums paid to the Service Provider by third parties for use of the Apparatus

Trade Marks means [insert details of Authority trade marks, if any, to be licensed] (whether unregistered or registered and including any applications for registration) and other Intellectual Property Rights subsisting in such trade marks from time to time

Transfer Amount means the aggregate of the Transfer Values as at the Relevant Transfer Date of, respectively, those Eligible Employees who elect to transfer their benefits

Transfer Date means the date the Transferring Employees are transferred to the employment of the Contractor and the date that the Transferring Original Employees are transferred to the employment of a subsequent contractor

Transferring Employee means an employee of the Authority [(excluding, for the avoidance of doubt, any person engaged by the Authority as an independent contractor or persons employed by any sub-contractor engaged by the Authority)] whose contract of employment becomes, by virtue of the application of TUPE in relation to what is done for the purposes of carrying out this Contract between the Authority and the Service Provider, a contract of employment with someone other than the Authority

Transfer Regulations means the Transfer of Undertakings (Protection of Employment) Regulations 2006

Transfer Value means the actuarial value of the benefits of each member of the Local Government Pension Scheme or Contractor Scheme (on a secondary transfer of employees), as the case may be, who elects to transfer their benefits pursuant to the terms of this Contract calculated on a Past Service Reserve basis and without any reduction having been applied to reflect any deficiencies in the assets relative to the liabilities of the Local Government Pension Scheme or Contractor Scheme

Transferring Employee means an employee of the Authority whose contract of employment becomes, by virtue of the application of TUPE in relation to what is done for the purposes of carrying out this Contract between the Authority and the Service Provider, a contract of employment with someone other than the Authority

Transferring Original Employee means an Original Employee:

(a) whose contract of employment becomes, by virtue of the application of the Regulations in relation to what is done for the purposes of carrying out a contract between the Authority and the Service Provider, a contract of employment with someone other than his existing employer; and

(b) whose contract of employment on each occasion when an Intervening Contract was carried out became, by virtue of the application of the Regulations in relation to what was done for the purposes of carrying out the Intervening Contract, a contract of employment with someone other than his existing employer.

Transferring Staff shall have the meaning given to it in clause 32A.2 (Transfer of Employees)

Treaty of European Union means the Treaty of Rome of 25 March 1957, as amended by the Single European Act 1986 and the Treaty of Maastricht (which was signed on 7 February 1992 and came into force on 1 November 1993)

TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (246/2006) and or any other regulations enacted for the purpose of implementing the Directive into English law.

Uninsurable means, in relation to a risk, either that:

(a) insurance is not available to the Service Provider in respect of the Project in the worldwide insurance market with reputable insurers of good standing in respect of that risk; or

(b) the insurance premium payable for insuring that risk is at such a level that the risk is not generally being insured against in the worldwide insurance market with reputable insurers of good standing by contractors in the United Kingdom

Unitary Charge shall have the meaning given to it in paragraph 1 of Part 1 of the Payment Mechanism

Unsuitable Person means any person who:

(a) has any Conviction;

(b) in the reasonable opinion of the Authority:

(i) is or is likely to cause damage to the reputation of the Authority; or

(ii) persistently fails or would fail to comply with the health and safety or other material obligations of the Service Provider under this Contract; or

(iii) is not a fit and proper person to be engaged, or employed in or in connection with the provisions or performance of any part of the Service; or

(iv) may present an actual or potential risk to the health, safety or welfare or any Authority Party or member of the public; or

(v) is not appropriately trained, qualified, skilled and/or competent to carry out any part of the Service

Value Added Tax and VAT means any value added taxes

Ward(s) means a ward or wards set out in the drawings contained in Appendix 6 of the Output Specification

Warranties means the warranties given by the Service Provider set out in Schedule 3 (Method Statements)

Workforce Information means those details set out in Part 2 of Schedule 25 (Workforce Information)

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59 May include property on a project specific basis.

60 On a project specific basis, the Authority may wish to retain all profits from Advertising. See clause 27.4 (Additional income) and corresponding footnotes.

61 This is not mandatory SOPC4 drafting and the Authority will need to consider whether it would be beneficial to have this right. See footnote to clause 42.9 (Termination by the Authority etc).

62 See clause 15.3 (Conduct of Staff). This definition may not be needed.

63 In composite trader projects this definition may be amended to read "works" expenditure or "relevant" expenditure.

64 See clause 256 (Changes in Standards) and accompanying footnote.

65 The list could appear in the Inventory.

66 This should be defined by reference to the borrower defaults under the Senior Financing Agreements (and applies whether or not the Senior Lenders choose to accelerate their loan). Note this obligation is additional to the obligations of the Agent under clause 10(d) of the Senior Lender's Director Agreement

67 Bid back item.

68 Once this provision is implemented, this definition will replace the following previous definition: "section 736 of the Companies Act 1985, as amended by section 144 of the Companies Act 1989".

69 Authority to insert a definition setting out the broad headings and issues it requires the report to cover.

70 Can be part of the Contract and attached as an appendix to the Output Specification or can be an Agreed Form Document.

71 To be listed on a project specific basis. These are contracts to which the Authority are not a party.

72 Bid back item.

73 The term Removed is used only in connection with the Certification of Apparatus pursuant to clause 12. It is anticipated that Certification by the Service Provider will only apply to Lighting Columns. However, on a project specific basis, Authorities may wish other Apparatus to be Certified.

74 The Required Insurances should not include Business Interruption Insurance. The Service Provider may choose to take such insurance out and therefore the cost will be included in the Unitary Charge but can only do this if it also takes out material damage insurance as well. In which case SOPC3 wording will apply. See footnote [♦].

75 To be renewed on a project specific basis.

76 See clause25.6 (Changes in Standards) and accompanying footnote.

77 If the Act has not been implemented at the time of use of this Contract, replace the reference with Section 736 of the Companies Act 1985 as amended by Section 144 of the Companies Act 1989.

78 This information will need to be provided by the Service Provider. This is the nominal post-tax (with respect to the Service Provider) Equity IRR set out in the Base Case, which excludes the effects of any anticipated refinancing.