(a) In this Agreement, unless the context otherwise requires:
means a Representative that has assumed the Contractor's rights under the Contract under Clause 5(a).
means [ • ];5
means the [ ] credit agreement dated [ ] between the Contractor, the Agent and various Senior Lenders and financial institutions.
shall have the meaning given to it in the Contract.
shall have the meaning given to it in the [Credit Agreement].
shall bear the meaning given to it in the Contract.
means
(a) the Agent, any Senior Lender and/or any of their Affiliates;8
(b) an administrator, administrative receiver9, receiver or receiver and manager of the Contractor appointed under the [Security Documents];10
(c) a person directly or indirectly owned or controlled by the Agent and/or any Senior Lender(s); or
(d) any other person approved by the Authority (such approval not to be unreasonably withheld or delayed).
means,11 subject to Clause 4 (No Liquid Market) the period starting on the date of a Termination Notice and:
(a) during the construction phase ending [120] days later; and
(b) during the operating phase ending [90] days later.
means the date on which all amounts which may be or become owing by the Contractor to the Senior Lenders under the [Credit Agreement] have been irrevocably paid in full;
means the date on which the Agent takes any action under Clause 5(a).
means the period from the Step-In Date up to and including the earlier of:
(a) the Step-Out Date:
(b) the date of any transfer under Clause 8;
(c) the date of any termination for breach under Clause 6; and
(d) the date of expiry of the Contract.
means the date falling [30]12 days after the date of the notice given under Clause 7 (Step-Out).
"Suitable Substitute Contractor"
means a person approved by the Authority (such approval not to be unreasonably withheld or delayed) as:13
(a) having the legal capacity, power and authority to become a party to and perform the obligations of the Contractor under the Contract; and
(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 Contractor under the Contract.
means a notice given by the Authority to the Agent under Clause 3(a).
means those Assets, (excluding any revenues or cash balances or rights accrued as at the Expiry Date or if earlier, the Termination Date under or pursuant to any Sub-Contract, Appointment or any Project Document), which are required by the Authority or its nominee or any replacement of the Contractor for the purposes of the construction, operation or maintenance of the Facilities following expiry or termination of the Contract assuming such construction, operation or maintenance is carried out on terms substantially the same as the terms of the Contract;
(b) Relevant parts of Schedule 1 (Definitions and Interpretation) of the Contract should be included here with suitable amendments where necessary.
(c) Capitalised terms defined in the [Credit Agreement]14 have the same meaning in this Agreement.
(d) The following terms have the meaning given to them in the Contract:
"Adjusted Estimated Fair Value of the Contract"
The following terms shall have the meaning given to it in the [Credit Agreement]:
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5 Reference Authority's direct agreements with sub-contractors.
6 As defined in Section 2.3 (Terminology).
7 In the past, some Authorities have taken the view that it is inappropriate to have an administrator, receiver, manager or an administrative receiver over the Contractor or its assets. Provided that the right to terminate the Contract for non-performance is preserved during this period and the operational assets of the Project are protected and preserved for the Authority (see Section 26.7 below), any such concern is misplaced.
8 See the definition in Schedule 1 (Definitions and Interpretation).
9 This assumes the Senior Lenders have valid security over all or substantially all of the assets of the Contractor, entitling them to appoint an administrative receiver.
10 To be defined, but Senior Lenders will expect the security referred to in footnote 9 above.
11 The time periods will be subject to the specific requirements of particular projects, but these are likely to be appropriate for many projects that have a split between these phases. In practical terms, since the Senior Lenders will be funding the Project while they are making the decision whether or not to step-in and the liability of the Senior Lenders while stepped-in is clearly limited in this agreement, provided the Project is not technically complex or does not involve a large banking syndicate 90 days may be sufficient even during the construction phase.
12 This will depend on the time required by the Authority to put in place alternative measures to provide the Service
13 This definition applies to the criteria required for a new Contractor. To the extent there are rights of veto for the Authority in the Contract on replacements to Sub-Contractors and transfers of shares (see Sections 7.25 (Control over Sub-Contractors and Employees) and 6 (Change of Ownership)), Senior Lenders will seek to impose criteria (such as the above). Thought should always be given to including any such criteria in the Contract and, to the extent they are included, these are appropriate limits. Criteria that are not objective are very unlikely to be "bankable". Other criteria may be appropriate in particular cases (for instance, if security or national security is an issue). Departments may require, for example, that directors of the Contractor have not committed a criminal offence. These requirements should focus on key requirements for a Contractor in that project (as, for example, a road traffic offence may have little or no relevance whereas persons with a material interest in the production, distribution or sale of tobacco, alcohol and/or pornography may be unsuitable for a schools project). Similar considerations apply to those in Section 7.28 (Control over Employees).
14 Or other relevant senior financing agreements as appropriate.
15 Reference Authority's direct agreements, if any, with members of the professional team.