SCHEDULE 1
DEFINITIONS, INTERPRETATION AND CONSTRUCTION
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 the application of the provisions of paragraph 1 of Schedule 7B (Accrual or
De-Accrual of Apparatus) and/or a Change under Schedule 7A (Change Procedure)] and
"Accrual" shall be construed accordingly;
"Actual Liability" shall bear the meaning ascribed to it in clause 22.9.3(c)(ii);
"Actual Monthly Monitoring 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 the Payment Mechanism or as otherwise agreed by the Parties, such report to be based on the relevant Draft Monthly Monitoring Report and to include any amendments agreed by the Parties during or following the meeting held in accordance with clause 22.2.2; "Actual Relevant Insurance Cost" means the aggregate of the [annual]1 insurance premiums reasonably incurred by the Service Provider to maintain the Relevant Insurance during the Insurance Review Period (disregarding any premiums which would have been payable to maintain insurance in respect of any Uninsurable risk) but excluding insurance premium tax and all broker’s fees and commissions;
"Additional Apparatus" means such Apparatus as is Accrued in accordance with paragraphs 1.2 and 1.4 of Schedule 7B (Accrual and De-Accrual of Apparatus); "Additional Deemed to Comply Apparatus" means such Apparatus as is Accrued in accordance with paragraphs 1.3 and 1.5 of Schedule 7B (Accrual and De-Accrual of
Apparatus);
"Additional Income" has the meaning ascribed thereto in clause 39.1 (Additional
Income);
"Additional Permitted Borrowing" means on any date, the amount equal to any amount of principal outstanding under the Senior Financing Agreements 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 Direct Agreement as it applies to such Additional Permitted Borrowing
and provided further that any such excess amount of principal which is invested as part of any [Qualifying Variation] shall not be counted as Additional Permitted Borrowing.
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"Additional Permitted Borrowings Limit" means an amount equal to:
(a) 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 50% or less of the Original Senior Commitment; and thereafter
(b) the higher of:
(i) 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 (a).
"Adjusted Estimated Fair Value of the Contract" means the Estimated Fair Value of the Contract, less an amount equal to the aggregate of:
(a) the Post Termination Service Amount (if a positive number);
(b) the Tender Costs; and
(c) amounts that the Authority is entitled to set off or deduct under clause 22.2.9 (Set-off),
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 Estimated Fair Value of this Contract is calculated;
(ii) any insurance proceeds and other amounts owing to the Service Provider (and which the Service Provider is entitled to retain), 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 calculating the Estimated Fair Value of the Contract; and
(B) the Authority has received such amounts in accordance with the Contract or such amounts are standing to the credit of the Joint Insurance Account;
"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
(c) amounts that the Authority is entitled to set off or deduct under clause 22.2.9 (Set-off),
(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" shall bear the meaning set out under each of Performance Standard 1 to Performance Standard 8 inclusive as applicable in Part 2 of the Payment Mechanism and the term "Adjustments" should be construed accordingly;
"Affected Party" shall bear the meaning ascribed to it in the Force Majeure Event definition.
"Affiliate" means in relation to any person, any holding company or subsidiary of that person or any subsidiary of such holding company and "holding company" and "subsidiary" shall have the meaning given to them in Section 736 of the Companies Act 1985;
"Agent" means [ ] in its capacity as agent for the Senior Lenders under the Senior Financing Agreements;
"Agreed Form" means in the form of a draft of such document initialled for the purpose of identification by or on behalf of the Parties;
"Annexure" means the documents referred to in the Main Body and/or the Schedules and initialled by or on behalf of the Parties and marked 1 to 12 (inclusive);
"Annual Amount" shall mean [to be specified];
"Annual Debt Service Cover Ratio" means [obtain from Senior Financing
Agreements];
"Annual Investment Programme" means the programme to be prepared by the Service Provider in accordance with clause 11 (Investment Programmes), having effect from the commencement of the Contract and relating to the provision of Services in respect of the Apparatus in the Agreed Form and set out in Annexure 3; "Annual Service Plan" shall bear the meaning ascribed to it in paragraph 2.4.4 of Schedule 6B (Best Value and Continuing Value for Money);
"Annual Service Report" shall bear the meaning ascribed to it in paragraph 2.4.1 of Schedule 6B (Best Value and Continuing Value for Money);
"Annual Service Report Date" means the date 5 Business Days after the end of the Contract Year in respect of which the report is to be produced. ;
"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" means the apparatus as defined in the Output Specification;
"Apparatus Licence" shall bear the meaning ascribed to it in clause 4.3 (Terms common to the Apparatus Licences);
"Appropriate Persons" shall bear the meaning ascribed to it in clause 15.1.1;
"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 law;
"Architectural Column" means those Columns as listed in Appendix 4 of the Output Specification
"ARD" means Authority Directive No.77/187/EEC (known as the "Acquired Rights Directive");
"Assets" means all assets and rights to enable the Authority or a successor Service Provider to own, operate and maintain the Project in accordance with this Contract, including:
(a) any land or buildings;
(b) any equipment;
(c) any books and records (including operating and maintenance manuals, health and safety manuals and other know–how);
(d) any spare parts, tools and other assets (together with any warranties in respect of assets being transferred);
(e) any revenues and any other contractual rights; and (f) any intellectual property rights,
but excluding any assets and rights in respect of which the Authority is full legal and beneficial owner;
"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.
"Attachment(s)" means all or any Authority Attachments and/or Third Party Authority Attachments.
"Attachment Works" means works comprising the attaching, moving, removing or changing the physical properties of an Authority Attachment or a Third Party Authority Attachment as the case may be;
"Authority Attachments" means any Authority owned street or non-illuminated traffic signs and notices or other equipment and items authorised by the Authority to be attached to lighting columns, including:
(a) any street or traffic sign;
(b) dog fouling notices;
(c) litter prevention notices;
(d) Statutory Notices;
(e) neighbourhood watch signs;
(f) other information notices which the Authority wishes to attach pursuant to its statutory powers;
(g) any environmental monitoring equipment the Authority considers is necessary or desirable;
(h) street name plates;
(i) alcohol prohibition and other by-law signs; (j) privilege direction signs;
(k) CCTV signs; and
(l) attachments referred to in paragraph 1.2 of Schedule 16 (Attachments and
Advertising).
"Authority Change" means a change in Service by the Authority which the Service Provider is obliged to implement under paragraph 1 of Schedule 7A (Change
Procedure);
"Authority Contracts" means:
(a) the Existing Wayleaves
(b) the existing contract between the Authority and the DNO
"Authority Default" shall bear the meaning ascribed thereto in clause 32 (Termination by the Service Provider - Authority Default events);
"Authority Default Termination Sum" has the meaning given to it in paragraph 1.2 of Section 2 of Schedule 6D;
"Authority Indemnity Sum" shall bear the meaning ascribed thereto in clause 22.7.2 (Taxation);
"Authority Materials" shall bear the meaning ascribed to it in clause 28.10.2 (Consequences of Termination);
"Authority Notice of Change" means a notice issued by the Authority under Schedule 7 (Changes to Services);
"Authority Party" means any officer, agent or employee of the Authority acting in the course of office of his employment, but excluding in each case the Service Provider and any Service Provider Party;
"Authority Project Intellectual Property" means Intellectual Property subsisting in the Disclosed Information, the Trade Marks and/or any other materials or know how in
each case provided by the Authority to the Service Provider at any time during the Contract Term;
"Authority Property" shall bear the meaning ascribed to it in clause 24.1.1(b);
"Authority's Condition Precedent" means those conditions precedent set out in Part 1 of Schedule 2 (Conditions Precedent);
"Authority's Depot" means the location notified to the Service Provider by the Authority from time to time;
"Authority's Project Director" means [to be specified]2 or such other person as the Authority shall from time to time appoint and notify to the Service Provider in writing; "Authority's Project Representative" means [♦]3 or through a nominated sub-Service Provider or agent or such other person as the Authority shall from time to time appoint and notify to the Service Provider in writing;
"Authority's Revenue Share" means the amount to which the Authority is entitled under clause 22.5(b);
"Banners" means vertical hanging decorative, informative or festive banners;
"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 calculating the Unitary Charge;
"Base Case Equity IRR" means [♦]%;4
"Base Cost" means £[ ] being the amount as agreed at the Bid Date and set out in the Financial Model which represents the insurance costs (which includes insurance related contingency amounts) which are proposed to be incurred to maintain the Relevant Insurance during the first year following the Services Commencement Date, expressed in real terms as at the Bid Date;
"Base Relevant Insurance Cost" means, the aggregate of the Base Costs which were (at Financial Close) projected to be incurred to maintain the Relevant Insurance during the Insurance Review Period escalated by actual RPI from the Bid Date up to the dates on which the Relevant Insurance was placed or renewed either immediately before or during the Insurance Review Period but excluding insurance premium tax and all brokers’ fees and commissions less any Base Relevant Insurance Reduction; "Base Relevant Insurance Reduction" the reduction to be made in respect of a risk which has become Uninsurable and shall be an amount that is either:
(a) the amount by which the Base Relevant Insurance Cost would have been a
lesser amount had such a risk been Uninsurable at the Commencement Date (which amount, for the avoidance of doubt, can be £0); or
(b) in the event that it is impossible to determine an amount pursuant to paragraph (a) above, an amount that is reasonable to be deducted from the Base Relevant Insurance Cost having due regard to:
2 To be confirmed with preferred bidder 3
To be confirmed with preferred bidder
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(i) the amount by which the Actual Relevant Insurance Cost is less than it would have been as a result of the risk becoming Uninsurable (the “Actual Reduction”);
(ii) the size of the Actual Reduction as a percentage of the Actual Relevant Insurance Cost immediately prior to the risk becoming Uninsurable; and
(iii) the effects of RPI since the Bid Date "Base Senior Debt Termination Amount" means :
(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 under the Senior Financing Agreements and 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 under the Senior Financing Agreements and in respect of Permitted Borrowings 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 (but excluding the Joint Insurance Account) 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 under the Senior Financing Agreements and in respect of Permitted Borrowings;
(iv) any Additional Permitted Borrowing and any interest and Default Interest on such Additional Permitted Borrowing; and
(v) 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 bear the meaning ascribed to it in clause 24.2 (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.
"Best Value Assistance and Reporting Method Statement" means Method Statement 11;
"Best Value Duty" means the duty imposed on the Authority by Section 3 of the 1999 Act in relation to, inter alia, the Service;
"Best Value Inspector" means an officer, agent or employee of the Audit Commission or other Relevant Authority empowered to inspect the Authority's compliance with Part 1 of the 1999 Act;
"Best Value Performance Plans" means the best value performance plans which are required to be published by the Authority in accordance with Section 6 of the 1999 Act (as amended);
"Best Value Review" means the review which is required to be conducted by the Authority in accordance with Section 5 of the 1999 Act;
"Best Value Review Date" means the [date to be specified]5 and each fifth anniversary thereof during the Contract Term or such other date or dates for a Best Value Review as the Authority may specify in a Best Value Performance Plan;
"Best Value Review Plan" has the meaning given to it in Schedule 6 Part B paragraph 3.6;
"Best Value Service Change Notice" has the meaning given to it in Schedule 6, Part B, paragraph 1.4.1;
"Business Interruption Cover" shall bear the meaning ascribed to it in the Required Insurance schedule in the Agreement;
"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 time;
"Certificate of Compliance" means a document signed by the Independent Certifier or (where permitted by clause 12.2 and/or 12.3) the Service Provider, to certify that: (a) New Apparatus has been installed in accordance with PS1 of the Output
Specification; and
(b) all Apparatus which is required to be Removed pursuant to this Agreement (including without limitation the Output Specification) has been so Removed; and
(c) "Certified" and "Certification" shall be construed accordingly;
"Cessation Date" shall bear the meaning ascribed to it in clause 27.3 (Pensions); "Change" means any change in any of the Output Specification 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;
"Change of 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;
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(ii) in a Bill;
(iii) in a draft statutory instrument; or
(iv) published as a proposal in the Official Journal of the European Communities.
(b) any Guidance; or
(c) any applicable judgment of a relevant court of law which changes a binding precedent.
"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 Obligations" means the express obligations of the Service Provider in clause 26 which derive from the Code;
"Collateral Warranty" means a collateral warranty entered into between the Authority, the Sub-contractor and a Key Sub-subcontractor in the agreed form set out in Annexure 14 or substantially in that form or such other form as is agreed between the Parties;
"Commercially Sensitive Information" means any information which is agreed by the parties at the time of the Contract as being commercially sensitive;
"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;
"Company" shall bear the meaning ascribed in it in paragraph 1 of Schedule 6D (Compensation on Termination);
"Compensating Sum" shall bear the meaning ascribed to it in clause 22.9(b) (Taxation);
"Compensation Date" means either:
(a) if paragraph 2 of Section 3 of Schedule 6D (Retendering Procedure) applies, the earlier of:
(i) the date that the New Contract is entered into; and
(ii) the date on which the Authority pays the Adjusted Highest Compliant Tender Price to the Service Provider; or
(b) if paragraph 3 of Section 3 of Schedule 6D (No Retendering Procedure) applies, the date that the Adjusted Estimated Fair Value of the Contract has been agreed or determined;
"Compensation Event" means any breach by the Authority of any of its obligations under this Contract;
"Compliant" means, in respect of Apparatus (including without limitation Lighting Columns) that such Apparatus does meet the requirements imposed by this Agreement (including without limitation the Output Specification);
"Compliant Tender" means any tender submitted by a Compliant Tenderer that meets the qualification criteria notified under paragraph 2.1.3 of Section 3 of Schedule 6D;
"Compliant Tenderer" means a tenderer who is a Suitable Substitute Service Provider;
"Conditions Precedent" means the conditions precedent set out in Schedule 2
(Conditions Precedent);
"Conduits" means all pipes, sewers, drains, mains, ducts, conduits, gutters, water courses, wires, cables, meters, switches, channels, flues and all other conductivity media, appliances and apparatus and including any fixtures, louvres, cowls and any other ancillary apparatus;
"Connections Review" shall bear the meaning ascribed to it in clause 22.6 (Connection Procurement Review);
"Consents" means all permissions, consents, approvals, certificates, permits, licenses and authorisations of a Relevant Authority required for the performance of any of the Service Provider's obligations under this Contract;
"Construction Period Insurance" means the Required Insurance in respect of the period from the date of this Agreement to the Service Commencement Date;
"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);
"Contract Term" 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;
"Contract Year" means each Year commencing on the Planned Service Commencement Date or the anniversary thereof and the term "Contract Years" shall be construed accordingly;
"Convictions" means, other than in relation to minor road traffic offences, any previous or pending prosecutions, convictions, cautions and binding-over orders (including any spent convictions as contemplated by section 1(1) of the Rehabilitation of Offenders Act 1974 by virtue of the exemptions specified in Part II of Schedule 1 of the Rehabilitation of Offenders Act 1974 (Exemptions) Order 1975 (S1 1975/1023) or any replacement or amendment to that Order);
"Core Investment Programme" or "CIP" means the initial renewal programme in respect of the Existing Apparatus in the Agreed Form and set out in Annexure 4 as
amended from time to time in accordance with clause 11.5 (Amendment of Investment Programmes);
"Core Investment Programme Period" or "CIPP" means the period of time 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 Apparatus the subject of the Core Investment Programme and/or that are not Deemed to Comply Apparatus and/or 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];
"CP Date" means •6 or such later day as the Parties may from time to time agree in writing pursuant to clause 2.4;
"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 21.3.2; "Current Energy Contract" means the current contract entered into by the Authority for the provision of electricity to the Existing Apparatus.
"Customer Care System" shall bear the meaning ascribed to it in the Output Specification;
"Customer Satisfaction Survey" has the meaning given to it in paragraph Schedule 6, Part B paragraph 2.1;
"Customer Satisfaction Survey Date" shall bear the meaning ascribed to it in the Output Specification;
"Data" means [♦]7;
"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 the application of the provisions of paragraph 1 of Schedule 7B (Accrual or De-Accrual
of Apparatus) and/or a Change under Schdule 7A (Change Procedure)] and
"De-Accrual" shall be construed accordingly;
"Deemed to Comply" shall bear the meaning ascribed to it in paragraph 4.2 of the Output Specification;
"Deemed Liability" shall bear the meaning ascribed to it in clause 22.7.3(c)(ii);
"Deemed New Contract" means an agreement on the same terms and conditions as this Contract, at the Termination Date, but with the following amendments:
6 To be discussed with preferred bidder 7
The Authority does not propose that this definition is used. Bidders should confirm agreement or otherwise indicate their proposed definition.
(a) if this Contract is terminated prior to the Service Commencement Date, then the Service Commencement Date shall be extended by a period to allow a New Service Provider to achieve Service Commencement ;
(b) any accrued Milestone Default Termination Points and/or accrued Service Default Termination Points pursuant to the provisions of The Payment Mechanism and/or any formal warning notices and/or final warning notices shall be cancelled;
(c) the term of such agreement shall be for a period equal to the term from the Termination Date to the Expiry Date;
"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 "Design Quality Plan" and appended hereto at Annexure 5;
"Development Particular Specification" means any specification that is not the Development Standard Specification used as the specification for apparatus to be provided by the Authority or under agreements with developers in respect of the construction of new highways or other schemes, where such apparatus is intended to be adopted as Additional Deemed to Comply Apparatus;
"Development Standard Specification" means a technical specification agreed from time to time between the Authority and the Service Provider consistent with the relevant requirements of the Output Specification and used as the specification for apparatus to be provided by the Authority or under agreements with developers in respect of the construction of new highways or other schemes, where such apparatus is intended to be adopted as Additional Apparatus;
"Direct Agreement" means the direct agreement dated on or about the date of this Contract and made between the Authority, the Service Provider and the Agent;
"Directive" means the EC Acquired Rights Directive 77/187 as amended; "Disclosure Bundle" means [to be completed8];
"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 (but shall exclude the information set out at Schedule 14 (Transferring Employees);
"Disclosing Party" means either Party when disclosing information or having information obtained from it;
"Discriminatory Change of 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
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(c) PFI Service Providers and not to other persons;
"Disputed Sum" shall bear the meaning ascribed to it in clause 22.2.5(b);
"Dispute Resolution" means the procedures set out in clause 38 (Dispute Resolution);
"Distribution" 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;
"District" means any area managed by a district council.
"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 Monitoring 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 the Payment Mechanism or as otherwise agreed by the Parties, such report to be the subject of discussions at the meeting held in accordance with clause 22.2.2;
"EEA" means from time to time the European Economic Area as created by The Agreement on the European Economic Area 1992 or any successor or replacement body, association, entity or organisation which has assumed either or both the function and responsibilities of the European Economic Area;
"Effective Date" shall bear the meaning ascribed to it in paragraph 1.10 of Schedule 6C (Revisions to the Financial Model);
"Electricity Contract" means a contract that the Service Provider enters into as a counterparty for the continuous supply of electricity to the Apparatus;
"Electricity Contract Execution Date" means the date upon which an Electricity Contract is executed by the Service Provider and the Successful Tenderer following
an Electricity Market Test in accordance with clause 22.3 (Electricity Procurement) and Schedule 11 (Electricity Market Test).
"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 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 bear the meaning ascribed to it in paragraph 1.5 of Part 1 of The Payment Mechanism;
"Electricity Market Test" means the competitive tender process conducted in accordance with Schedule 11, by which the Parties shall determine the price, terms and conditions of an Electricity Contract in the open market
"Electricity Market Test Date" means the date agreed between the Parties and recorded in the Electricity Procurement Proposal upon which the price for the supply of electricity is determined pursuant to an Electricity Market Test.
"Electricity Market Test Proposal" has the meaning ascribed to it in paragraph 1.7 of Schedule 11 (Electricity Market Test).
"Emergency" means any:
(a) event or circumstance which gives rise to the involvement of the emergency services; or
(b) fire, flood, serious criminal act or other act which creates an immediate risk to public health and/or safety;
"Employees" means all those persons employed or engaged directly or indirectly by the Service Provider or any Sub-contractors or Sub-subcontractor who are, at the relevant time, wholly or substantially engaged in the provision of the Service or any services equivalent to the Service;
"Employee Transfer" means a relevant transfer of an undertaking for the purposes of the Transfer Regulations or the ARD or any other Law;
"Employment Liabilities" means all losses, actions, costs, demands, liabilities, fines, damages and expenses (including, but not limited to salaries, wages, taxes, insurances, benefits and claims for wrongful dismissal, unfair dismissal and/or redundancy);
"End Employees" shall bear the meaning ascribed to it in clause 26.18;
"Environmental Policy" means the Authority's environmental policy as set out in Annexure 12
"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;
"Equity IRR" means the projected blended rate of return to the Relevant Persons over the full term of the Contract, having regard to Distributions made and projected to be made;
"Escrow Account" means [to tie in with Financing Agreements];
"Estimate" shall bear the meaning ascribed to it in paragraph 1.2 of Schedule 7A
(Change Procedure);
"Estimated Change in Project Costs" means in relation to paragraph 3 of Schedule 15 (Relief Event Compensation Event and Excusing Event) the aggregate of any increased installation costs, operating costs and financing costs less the aggregate of any reduced installation costs, operating costs and financing costs;
"Estimated Fair Value of the Contract" means the amount determined in accordance with paragraph 3 of Section 3 of Schedule 6D (No Retendering
Procedure) that a third party would pay to the Authority as the market value of the
Deemed New Contract;
"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;
"Exceptional Cost" means, for an Insurance Review Period, the extent to which there is an Insurance Cost Increase which exceeds in amount 30% of the Base Relevant Insurance Cost for that Insurance Review Period;
"Exceptional Saving" means, for an Insurance Review Period, the extent to which there is an Insurance Cost Decrease which exceeds in amount 30% of the Base Relevant Insurance Cost for that Insurance Review Period;
"Excusing Cause" means:
(a) the inability of the Service Provider to secure access to the Apparatus for the provision of the Service as a result of any Third Party rights and/or wayleaves where the Service Provider has complied with its obligations and taken such steps as it is able to in accordance with clauses 16.2.2(c)(i) (Wayleaves), 16.2.4(d) (Wayleaves), or 16.4 (Access to Third Party Land) (as applicable), continuing for such period until the Parties have determined and implemented an alternative course of action pursuant to clauses 16.2.2(c)(i) (Wayleaves), 16.2.4(d) (Wayleaves), or 16.4 (Access to Third Party Land) (as applicable), or (b) the circumstances where the Authority serves or ought to have served (but has
failed to do so) a notice pursuant to paragraphs 4.6 and 4.9 of this Schedule 15; or
(c) any failure of or disruption to power occurring to the electricity distribution system belonging to a DNO excluding the low voltage cable directly connected to the Apparatus; or
(d) to the extent that there remains outstanding less than 500 Lighting Points which are required to be Removed during the Core Investment Programme Period in accordance with the Table set out in Annexure 4 and the Service Provider is
materially obstructed in delivering the Core Investment Programme Service only to the extent that :
(i) the works are being carried out on the Public Highway, and
(ii) the nature of the works is such that they are required to be entered upon the Street Works Register (maintained in accordance with the Authority’s obligations under the New Roads and Street Works Act), and:
(iii) they have not been so entered; and
(iv) they materially affect the ability of the Service Provider to continue to progress the Core Investment Programme Service.
"Exempt Refinancing" means:
(a) any Refinancing that was fully taken into account in the calculation of the Unitary Charge;
(b) a change in taxation or change in accounting treatment;
(c) the exercise of rights, waivers, consents and similar actions which relate to day to day administrative and supervisory matters, and which are in respect of: (i) breach of representations and warranties or undertakings;
(ii) movement of monies between the Project Accounts in accordance with the terms of the Senior Financing Agreements as at Financial Close; (iii) late or non-provision of information, consents or licences;
(iv) amendments to Sub-Contracts;
(v) approval of revised technical and economic assumptions for financial model runs (to the extent required for forecasts under the Financing Agreements);
(vi) restrictions imposed by the Senior Lenders on the dates at which the Senior Debt can be advanced to the Service Provider under the Senior Financing Agreements and/or amounts released from the [Escrow Account] during the [Initial Availability Period], each as defined in the Senior Financing Agreements and which are given as a result of any failure by the Service Provider to ensure that the construction work is performed in accordance with the agreed construction programme and which is notified in writing by the Service Provider or the Senior Lenders to the Authority prior to being given;
(vii) changes to milestones for drawdown and/or amounts released from the [Escrow Account] during the [Initial Availability Period ] set out in the Senior Financing Agreements and which are given as a result of any failure by the Service Provider to ensure that construction work is performed in accordance with the agreed construction programme and which is notified in writing by the Service Provider or the Senior Lenders to the Authority prior to being given;
(viii) failure by the Service Provider to obtain any consent by statutory bodies required by the Senior Financing Agreements; or
(ix) voting by the Senior Lenders and the voting arrangements between the Senior Lenders in respect of the levels of approval required by them under the Senior Financing Agreements;
(d) any amendment, variation or supplement of any agreement (other than any Subordinated Financing Agreement) approved by the Authority as part of any Qualifying Variation under this Contract;
(e) any sale of shares in the Service Provider by the shareholders or securitisation of the existing rights and/or interests attaching to shares in the Service Provider;
(f) any sale or transfer of the Subordinated Lenders’ existing rights and/or interests under the Subordinated Financing Agreements or securitisation of the Subordinated Lenders’ existing rights and/or interests under the Subordinated Financing Agreements; or
(g) any Qualifying Bank Transaction,
"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 shown in the Inventory at the Service Commencement Date;
"Existing Wayleaves" means those documents formally entered into by the Authority with third parties for the purposes of recognising, in return for financial consideration, a formal wayleave over the relevant third party's property
"Expiry Date" means the 25th anniversary of the Service Commencement Date; "Fair Value" means the amount at which an asset or liability could be exchanged in an arms length transaction between informed and willing parties, other than in a forced or liquidation sale;
"Festive Lighting" means lighting, illumination, decorations and bunting used or intended for:
(i) the celebration or enjoyment of religious festivities; or (ii) annual or regular displays;
"Final Authority List" shall bear the meaning ascribed to it in clause 26.10.3 (Particulars of employment of Transfer Employees);
"Final Survey" shall bear the meaning ascribed to it in clause 37.3;
"Financial Close" has the meaning given to it in the Senior Financing Agreements; "Financial Model" means the financial model prepared on behalf of the Service Provider and delivered to the Authority on the date of this Contract, such model setting out the basis on which the financing of the Service Provider and/or the costs of and revenue from this Contract have been calculated by the Service Provider (including
the assumptions used, the cell logic network for the Financial Model software and any accompanying documentation necessary to operate such Financial Model);
"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);
"First Authority List" shall bear the meaning ascribed to it in clause 26.10.1(b) (Particulars of employment of Transfer Employees);
"First Insurance Review Date" means the first business day following the date of the first renewal of the Relevant Insurance which takes place no earlier than the first anniversary of the Relevant Insurance Inception Date;
"Five Year Investment Plan" means the indicative renewal programme for each period of five Payment Years (of which the Core Investment Programme constitutes the first).
"Force Majeure Event" means the occurrence after date of 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 actions of the Service Provider or any Subcontractor; or
(c) pressure waves caused by devices travelling at supersonic speeds,
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;
"Force Majeure Termination Sum" shall bear the meaning ascribed thereto in paragraph 1.2 of Section 5 of Schedule 6D (Payments on Termination);
"Future Service Provider" means any third party engaged by the Authority to perform any of the Services or any service equivalent to the Service;
"General Change of Law" means a Change of Law which is not a Discriminatory Change of Law or a Specific Change of 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 the amount of unconditionally guaranteed third party revenue or income included in the Base Case and shown as payable by the Service Provider to the Authority;
"Guidance" means any applicable guidance or direction with which the Service Provider is bound to comply by Law;
"H&S Conviction" shall bear the meaning ascribed to it in clause 31.10.15 (Service
Provider Default);
"Handback Condition" means in relation to each item of Apparatus, a condition which is consistent with:
(a) the Service being and having been performed to the standards required by this Contract (including without limitation the Output Specification); and (b) the design life of the Apparatus as described in the Output Specification for
each item of Apparatus having been achieved; and
(c) the Apparatus being in a reasonable state of working order as at the Expiry Date;
"Hanging Baskets" means a decorative hanging basket;
"Heritage Area" means the areas as set out in Appendix 5 of the Output Specification "Highest Compliant Tender Price" means the price offered by the Compliant Tenderer (if any) with the highest tender price and, if no Compliant Tenders are received, zero;
"HoldCo" means [♦]9;
"Holding Company" has the meaning given to it in Section 736 of the Companies Act 1985, as amended by Section 144 of the Companies Act 1989;
"Illuminated Traffic Bollards" shall bear the meaning ascribed to it in part 1 of the Output Specification;
"Illuminated Traffic Signs" shall bear the meaning ascribed to it in part 1 of the Output Specification;
"Indemnifier" shall bear the meaning ascribed to it in clause 24.2 (Conduct of proceedings for matters covered by Provider's and Authority's indemnities);
"Indemnity Payment" shall bear the meaning ascribed to it in clause 22.7.1(b); "Independent Certifier" means10
"Independent Certifier's Appointment" means the form of appointment included at Annexure 8.
"Information" means all or any programme, code, databases, data, materials, words (whether literary, artistic or otherwise), know how and/or information which are used by the Service Provider, its sub-contractor or agents or are otherwise relevant to the maintenance, management, provision, replacement, carrying out and operation of the Apparatus and/or the Service;
"Initial Availability Period" means [♦]11;
"Initial Financial Model" is the financial model a summary of which is identified in Annexure 6;
9 Bidders should identify whether they propose to use a Holdco structure, 10
Bidder to propose indicative name.
11
"Initial Financing Agreements" means the Financing Agreements put in place upon signature of this Contract as follows:
[♦]12;
"Initial Investment Renewal Programme" means the initial renewal programme in respect of the Existing Apparatus in the Agreed Form and set out in Annexure 7; "Installation" means the time at which a Certificate of Compliance has been issued by the Independent Certifier or the Service Provider as appropriate, in accordance with the requirements of this Contract, and "Install" shall be construed accordingly;
"Installation Sub-contractor" means the [person performing the installation or development obligations]13;
"Instalment Dates" shall bear the meaning ascribed to it in paragraph 5.2.1 of Section 8 (General) of this Schedule 6D;
"Insurance Cost Differential" shall, subject to the Insurance Review Procedure, be determined as follows:-
Insurance Cost Differential = ARIC - BRIC - PIC where:
ARIC is the Actual Relevant Insurance Cost BRIC is the Base Relevant Insurance Cost PIC is any Project Insurance Change
"Insurance Cost Decrease" means the Insurance Cost Differential if the value thereof is less than zero, multiplied by minus one;
"Insurance Cost Increase" means the Insurance Cost Differential if the value thereof is greater than zero;
"Insurance Cost Index" means any index introduced by the United Kingdom Government or the Office of National Statistics after the date of this Agreement and which is anticipated to be published annually to provide an independent and objective measure of changes in prevailing market insurance costs;
"Insurance Review Date" means the First Insurance Review Date and, thereafter, each date falling on the second anniversary of the previous Insurance Review Date, except where such date lies beyond the date of termination of the Agreement, in which case the Insurance Review Date shall be the last renewal date of the Relevant Insurance prior to the date of termination of the Agreement;
"Insurance Review Period" means a two year period from the Relevant Insurance Inception Date and each subsequent two year period commencing on the second anniversary of the Relevant Insurance Inception Date except where the end of such period lies beyond the end of the Contract Period, in which case the Insurance Review Period shall be the period from the final second anniversary of the Relevant Insurance Inception Date (within the Contract Period) to the last day of the Contract Period;
"Insurance Review Procedure" means the procedure set out in paragraph 2;
12
To be finalised with Preferred Bidder
13
"Insurance Undertaking" has the meaning given in the rules from time to time of the Financial Services Authority;
"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;
"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 Date;
"Investment Programmes" means the Core Investment Programme and the Annual Investment Programme;
"Irrecoverable VAT" shall bear the meaning ascribed to it in clause 22.10;
"Joint Insurance Account" means the joint bank account in the names of the Authority and the Service Provider, having account number [♦] and held with [♦]14; "Junior Debt" means all amounts outstanding at the Termination Date under the Subordinated Financing Agreements;
"Key Subcontract" means the following sub-contracts:15
"Key Sub-subcontractor" means any Sub-subcontractor which enters into a Key Sub-subcontract with a Sub-contractor;16
"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
(c) any enforceable Community right within the meaning of Section 2 of the European Communities Act 1972,
in each case in the United Kingdom;
"Lighting Columns" shall bear the meaning ascribed thereto in part 1 of the Output Specification;
"Lighting Points" shall bear the meaning ascribed thereto in part 1 of the Output Specification;
"Liquid Market" means that there are sufficient willing parties (being at least two parties each of whom is capable of being a Suitable Substitute Service Provider) in the market for PFI contracts or similar contracts for the provision of services (in each case the same as or similar to the Contract) for the price that is likely to be achieved
14 To be completed with Preferred Bidder 15
Dependent on the Bidder's Structure. Bidder should indicate whether definition required
16
through a tender to be a reliable indicator of Fair Value provided always that any vehicle controlled and established by the Senior Lenders specifically for the purposes of this Project and to which this Contract may be novated shall be discounted in assessing whether there are sufficient willing bidders in the market for such purposes; "Loan Life Cover Ratio" shall bear the meaning ascribed to it in the Facility Contract; "Local Contracts" means all relevant local agreements between the Authority and relevant trade unions as at the date of signing this Contract;
"Local Government Pension Scheme" 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;
"Losses" means all damages, losses, liabilities, costs, expenses (including legal and other professional charges and expenses), and charges whether arising under statute, contract or at common law or in connection with judgments, proceedings, internal costs or demands;
"Main Body" means the Parties, the recitals, clauses 1 to 68 (inclusive) and the attestation and testimonium provisions to this Contract;
"Management Information System" shall bear the meaning ascribed to it in part 1 of the Output Specification and containing the information set out in clause 7 (Management Information System);
"Management Information System Accuracy" shall bear the meaning ascribed to it in paragraph 4.6 of Part 2 of the Payment Mechanism;
"Management Information System Survey" shall bear the meaning ascribed to it in clause 37.6 (Management Information System Survey);
"Maximum Monthly Payment" means in respect of a Month, the Unitary Charge payable during that Month before any Adjustments under the Payment Mechanism but allowing for indexation;
"Market Value Availability Deduction Amount" means for any month or part of a month, an amount equal to the Adjustment that was made to the Monthly Payment under the Payment Mechanism in the month immediately preceding the Termination Date, less an amount equal to any Adjustment that was made for a failure at the Termination Date but which has subsequently been remedied whether as a result of the Authority incurring Rectification Costs or otherwise;
"Method Statements" means the method statements prepared by the Service Provider contained at Schedule 5 (Method Statements);
"Milestone" means a milestone as set out in rows 1 to 10 of the table in clause 11.8.1 (Milestones);
"Milestone Completion Date (Projected)" means the date set out in column 2 of the table in clause 11.8.1 (Milestones);
"Milestone Default Termination Points" means default termination points which may be awarded to the Service Provider by the Authority in accordance with clause 11.9; "Minor Snagging Items" shall bear the meaning ascribed to it in part 1 of the Output Specification;
"Month" means any calendar month during the Contract Term, 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 calendar 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 Monitoring Meeting" shall bear the meaning ascribed to it in clause 22.6; "Monthly Monitoring Report" means the report to be delivered to the Authority in accordance with the Agreed Form set out Part 3 of The Payment Mechanism;
"Monthly Payment" shall bear the meaning ascribed thereto in paragraph 1.3 of Part 1 of the Payment Mechanism;
"Monthly Service Report" shall bear the meaning ascribed to it in paragraph 2.5(a) of Schedule 8 (Monitoring, Reporting and Service Default Procedure);
"Monthly Unitary Charge" means the amount calculated in accordance with Part 1 of the Payment Mechanism;
"Moral Rights" means the rights conferred by Part I, Chapter IV of the Copyright, Designs and Patents Act 1988 (or any statutory modification or re-enactment thereof) and all rights similar or corresponding thereto subsisting in any part of the world from time to time;
"National Contracts" means relevant national agreements in force as at the date of signing this Contract;
"Necessary Consents" means all approvals, permissions, consents, licences, certificates and authorisations (whether statutory or otherwise) which are required for the purposes of carrying out the Project (and whether required in order to comply with Legislation or as a result of the rights of any third party);
"Network Board" means the board convened and operated in accordance with paragraph 1 of Annexure 9 (Network Board and Partnering Facilitator);
"New Apparatus" means all Apparatus acquired by the Service Provider in order to perform the Services (excluding, for the avoidance of doubt, the Existing Apparatus); "New Contract" means an agreement on the same terms and conditions as this Contract at the Termination Date, but with the following amendments:
(a) if this Contract is terminated prior to the Service Commencement Date, then the Service Commencement Date shall be extended by a period to allow a New Provider to achieve Service Commencement;
(b) any accrued Milestone Default Termination Points and/or accrued Service Default Termination Points pursuant to the provisions of The Payment Mechanism and/or any formal warning notices and/or final warning notices shall be cancelled;
(c) the term of such agreement shall be equal to the term from the Termination Date until the Expiry Date; and
"New Employees" means those new employees employed by the Service Provider, Key Sub-contractor or Sub-subcontractor as the case may be to provide the Service; "New Employer" shall bear the meaning ascribed to it in paragraph 27.11 (Pensions); "Net Present Value" means the aggregate 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;
"New Service Provider" means the person who has entered or who will enter into the New Contract with the Authority;
"Non-Compliant" means in respect of Apparatus (including without limitation Lighting Columns) that such Apparatus does not meet the requirements imposed by this Agreement (including without limitation the Output Specification);
"Non-Contestable Works" means any works upon or connections to the distribution system of a DNO, which are not Contestable Works;
"Non-Contestable Works Saving" shall bear the meaning ascribed to it in clause 22.35;
"Notice Date" means the later of the Termination Date and (if applicable) the date that the Adjusted Estimated Fair Value of the Contract is agreed between the parties pursuant to Schedule 6D, Part 7(No Retendering);
"NRSWA" means The New Roads and Street Works Act 1991;
"Omission" means Apparatus referred to as an omission in Annexure Error! Reference source not found. (Additions and Omissions);
"Operating Sub-contractor" means [the person performing obligations to provide the Service during the Service Period]17;
"Operational Panel" shall bear the meaning ascribed to it in clause 38.4 (Dispute Resolution);
"Original Non-Contestable Works" means Non-Contestable Works which the Base Case Financial Model assumes will be undertaken pursuant to this Agreement, the prices for which are set out at Schedule 17;
"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 The Output Specification;
"Owners" shall bear the meaning ascribed to it in clause 16.2.2(b) (Wayleaves); "Parish" means any area managed by a parish council;
"Parties" means the Authority and the Service Provider;
"Partnering Facilitator" shall have the meaning ascribed thereto in paragraph 4 of Annexure 9 (Network Board and Partnering Facilitator);
17
"Payment" means "Unitary Charge" or "Monthly Payment";
"Payment Year" means a Year commencing (unless the public sector financial year shall be required to be amended) on 1st April in each calendar year and expiring on 31st March in the succeeding year provided that the first Payment Year shall commence on the Service Commencement Date and shall expire on the following 31st March and the last Payment Year shall commence on the final 1st April of the Contract Term and shall expire on the earlier of the Expiry Date or Termination Date;
"PCA" means the Prevention of Corruption Acts 1889-1916;
"Pension Scheme" shall bear the meaning ascribed to it in clause 27.3 (Pensions); "Performance Points" means points which are awarded and lead to Adjustments in accordance with paragraph 6 of Part 2 of the Payment Mechanism;
"Performance Standard" or "PS" means all or any of the performance standards set out in Parts 1 to 5 (inclusive) of the Output Specification and/or the Payment Mechanism;
"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 the Committed Standby 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 Initial Financing Agreements only (prior to any subsequent amendment), other amounts accrued or payable under the terms of the Senior Financing Agreements,
except where the amount referred to in paragraphs (a) to (d) above is or is being used to fund a payment of Default Interest on any Additional Permitted Borrowing;
"Permitted Purpose" shall bear the meaning ascribed to it in clause 28.6 (Licence to use Trade Marks and Data);
"Persistent Breach" means a breach (other than any breach for which Performance Points could have been awarded and/or Adjustments could have been made) which has continued or recurred one or more times within six (6) months after the date on which a final warning notice referred to in paragraph (b) of clause 31.8 (Persistent Breach) 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, Service Providers, sub-contractors or other representatives, of the Service Provider, or of any Sub-contractor Provider or Sub-subcontractor involved directly or indirectly in the provision of the Service;
