Schedule 1
[page to be removed from engrossments]
1
C:\NRPORTBL\MATTERS\MDUNN\2337609_1.DOC / DRAFT 17.3.2006 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2
Schedule 2
COMPLETION DOCUMENTS
This is Schedule 2 comprising Completion Documents referred to in the Project Agreement for the [description of Project]
between
Community Health Partnerships Limited
and
[ ]
1
C:\NRPORTBL\MATTERS\MDUNN\2337609_1.DOC / DRAFT 17.3.2006 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2
SCHEDULE 2
Completion Documents[1]
Part 1: Documents to be delivered by Project Co
Unless an original document is specifically requested, a copy (certified by an officer of Project Co as being a true copy) of each of the following documents is to be delivered by Project Co to CHP in accordance with Clause 2.1 of the Agreement:
1The Consents and other authorisations, licences, permits, and approvals listed below:
[Project specific items to be used]
2The Shareholders Agreements and certification from Project Co that the Shareholders Agreements have become (or will become, simultaneously with delivery of the other documents referred to in this Schedule) unconditional in accordance with their terms, accompanied by evidence of the same.
3The Funding Agreements and certification from Project Co that (1) the Funding Agreements have become unconditional (other than any condition relating to the conditionality of this Agreement) and (2) that all conditions to the availability of funds to Project Co under the Funding Agreements have been satisfied or waived, accompanied by evidence of the same[2].
4The Construction Contract, the Services Contract and the Performance Guarantees, executed by the parties to such agreements.
5An original of the Funders' Direct Agreement, the Independent Tester Contract, the Insurance Proceeds Account Agreement, the Collateral Agreements and the brokers letters of undertaking relating to the Insurances referred to in paragraph 12 below in the Agreed Form, executed by the parties to such agreements (other than CHP).
6An original of the Custody Agreement, executed by the parties (other than CHP).
7Extracts from the minutes of the meeting of the board of directors (certified as true and accurate by the Secretary of the relevant company) of each of Project Co, each Shareholder, [HoldCo] and each of the other parties to the documents listed in Schedule 2 Part 1, at which resolutions were passed approving the execution, delivery and performance of each relevant document to which such person is expressed to be a party and in each case authorising a named person or persons to execute and deliver each such document and any other documents to be delivered by it pursuant to it.
8A certificate of the Secretary of each of the companies referred to in paragraph 7 setting out the names and specimen signatures of the person or persons named in the relevant certified extract.
9Evidence of the share subscriptions required under the Shareholders Agreements and other shareholder funding commitments having been made by the Shareholders in Project Co [and HoldCo].
10Project Co's [and HoldCo's] Certificate of Incorporation and of any Certificate of Incorporation on Change of Name.
11The Memorandum and Articles of Association of Project Co [and HoldCo].
12Evidence of the insurances required in accordance with Clause 36 (Insurances) having been taken out by Project Co and that the policies comply with the requirements of this Agreement.
13Two copies of the Financial Model audited by [relevant financial adviser] and a computer disk copy.
14Evidence that an election has been made for Project Co to act as "client" for the Project for the purposes of the CDM Regulations.
15[CHP to indicate other project specific documents, including any other project document, planning and property related agreements and any subordinated debt or other financing arrangement.]
16An original duly executed copy of this Agreement.
Part 2: Documents to be delivered by CHP
CHP shall deliver to Project Co the following documents:
1An original duly executed Certificate of Commencement.
2An original copy of the Funders' Direct Agreement, the Collateral Agreements, the Custody Agreement, the Independent Tester Contract, the Insurance Proceeds Account Agreement, and this Agreement, duly executed by CHP.
3A certified copy of the board resolution of CHP approving the execution, delivery and performance of the documents referred to in paragraphs 1 and 2 above and in each case authorising a named person or persons to execute and deliver each such document and any documents to be delivered by it pursuant thereto.
4A certificate of the relevant officer of CHP setting out the names and specimen signatures of the person or persons named in the Board Resolution of CHP.
5[CHP to list other project specific documents].
Schedule 3
CUSTODY AGREEMENT
This is Schedule 3 comprising the Custody Agreement referred to in the Project Agreement
for the [description of Project]
between
Community Health Partnerships Limited
and
[ ]
1
C:\NRPORTBL\MATTERS\MDUNN\2337609_1.DOC / DRAFT 17.3.2006 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2
SCHEDULE 3
Custody Agreement[2]
[The contents of this Schedule are project specific and should be prepared by each CHP on a project basis.]
Schedule 4
KEY WORKS PERSONNEL
This is Schedule 4 comprising the Key Works Personnel referred to in the Project Agreement
for the [description of Project]
between
Community Health Partnerships Limited
and
[ ]
1
C:\NRPORTBL\MATTERS\MDUNN\2337609_1.DOC / DRAFT 17.3.2006 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2 2022820-2
SCHEDULE 4
Key Works Personnel[3]
Schedule 5
DISASTER PLAN
This is Schedule 5 comprising the Disaster Plan referred to in the Project Agreement
for the [description of Project]
between
Community Health Partnerships Limited
and
[ ]
SCHEDULE 5
Disaster Plan[4]
[The contents of this Schedule will be project specific and should be developed by each CHP on a project basis]
Schedule 6
FUNDERS' DIRECT AGREEMENT
This is Schedule 6 comprising the Funders' Direct Agreement referred to in the Project Agreement for the [description of Project]
between
CHP
and
[ ]
SCHEDULE 6
Funders' Direct Agreement [5]
THIS AGREEMENT IS MADE ON [ ]BETWEEN:
1COMMUNITY HEALTH PARTNERSHIP LIMITED("CHP")
2[ ] (the "Agent" for the Senior Funders) on behalf of itself and the Senior Funders; and
3[ ] (company no [ ]) whose registered office is at [ ] ("Project Co")
IT IS AGREED AS FOLLOWS:
1INTERPRETATIONS
1.1Definitions[6]
In this Agreement, unless the context otherwise requires:
"Appointed Representative"
means a Representative that has been notified to CHP pursuant to a Step-In Notice
"Collateral Agreement Counterparty"
means one of the parties to the Collateral Agreements (other than CHP or Project Co)
"Enforcement Event"
means [acceleration of maturity - see relevant clause of Senior Funders Agreement/bond trust deed][7]
"Event of Insolvency"
means [incorporate appropriate cross references from Project Agreement] (inclusive) of a Project Co Event of Default
"Final Payment Date"
means the date upon which all indebtedness of Project Co under the Funding Agreements has been fully and irrevocably paid or discharged and no future indebtedness is capable of becoming outstanding
"Project Agreement"
means an agreement dated [ ]between Project Co and CHP relating to the [ ]
"Representative"
means:
(a)the Agent, any Senior Funder and/or any of their Associated Companies
(b)an administrative receiver, receiver or receiver and manager of Project Co appointed under the Security Documents
(c)an administrator of Project Co
(d)a person directly or indirectly owned or controlled by the Agent and/or any Senior Funders; or
(e)any other person approved by CHP (such approval not to be unreasonably withheld or delayed)
"Required Period"
means, subject to paragraph 4, the period starting on the date of a Termination Notice and:
(a)prior to the Payment Commencement Date, ending eighty (80) Business Days later; and
(b)following the Payment Commencement Date, ending sixty (60) Business Days later[8]
"Security Documents"
[list the security documents forming part of the Senior Funders Agreements]
"Senior Funders"
means [insert details if not included in Project Agreement]
"Step-In Date"
means the date on which the Agent gives CHP a Step-In Notice
"Step-In Notice"
means the notice given by Project Co to CHP pursuant to Clause 4.1 stating that the Agent is exercising the step-in rights under this Agreement and identifying the Appointed Representative
"Step-In Period"
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 paragraph 9;
(c)the date of any termination for breach under paragraph 7; and
(d)the date of expiry of the Project Agreement
"Step-Out Date"
means the date falling twenty (20) Business Days after the date of a Step-Out Notice
"Step-Out Notice"
means a notice from the Agent or Appointed Representative to CHP pursuant to paragraph 8 (Step Out)
"Suitable Substitute Contractor"
means a person approved by CHP (such approval not to be unreasonably withheld or delayed) as:
(a)having the legal capacity, power and authority to become a party to and perform the obligations of Project Co under CHP Project Documents; 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 Project Co under CHP Project Documents
"Termination Notice"
means a notice given by CHP to the Agent under paragraph 3.2
"CHP Project Documents"
means the Project Agreement and all other documents to which CHP and Project Co are parties pursuant to the Project Agreement
1.2Interpretation
1.2.1Capitalised terms defined in the Project Agreement shall have the same meaning in this Agreement.
1.2.2The clause and paragraph headings in this Agreement are for ease of reference only and are not to be taken into account in the construction or interpretation of any provision to which they refer.
1.2.3Unless the context otherwise requires:
(a)a reference in this Agreement to any clause, sub-clause, paragraph, schedule or annex is, except where it is expressly stated to the contrary, a reference to such clause, sub-clause, paragraph, schedule or annex of this Agreement;
(b)references to this Agreement or to any other such document shall include any permitted variation, amendment or supplements to such document;
(c)references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument (including any EU instrument) as amended or re-enacted;
(d)references to a person includes firms and corporations and their successors and permitted assignees or transferees;
(e)words in this Agreement importing any one gender include both other genders and may be used interchangeably; and
(f)words in this Agreement importing the singular meaning, include the plural meaning and vice versa.
2CONSENTTO SECURITY
2.1CHP acknowledges notice of, and consents to, the security interest granted over Project Co's rights under CHP Project Documents[9] effected by Project Co in favour of the Senior Funders under the Security Documents.
2.2CHP confirms that it has not received notice of any other security interest granted over Project Co's rights under CHP Project Documents.
2.3Except as specifically provided for in this Agreement CHP has no obligations (whether express, implied, collateral or otherwise) to the Agent and/or the Senior Funders in connection with this Agreement or CHP Project Documents or the Project.
2.4CHP acknowledges notice of and consents to the security interest granted by HoldCo in favour of the Agent over the entire issued share capital of Project Co.[10]
2.5[For the purposes of Clause 35.3 of the Project Agreement, Project Co and the Agent hereby authorise and instruct CHP (and CHP agrees) to pay all sums payable to Project Co under CHP Project Documents to the[account]and Project Co and CHP agree that upon the occurrence of an Enforcement Event, if so directed in writing by the Agent upon giving reasonable notice[11] , CHP shall pay any sum which it is obliged to pay to Project Co under CHP Project Documents to a bank account specified by the Agent.]
2.6CHP shall not be obliged to make any enquiry as to the authority of the Agent in doing any act or entering into any document or making any agreement under of in connection with this Agreement and CHP shall be entitled to assume that the Agent is duly authorised by each of the Senior Funders to assume the obligations expressed to be assumed by it under this Agreement and to undertake on behalf of each Senior Funder in the terms of this Agreement so as to bind each Senior Funder as if it were a party hereto.
2.7The rights of the Agent under this Agreement shall be extinguished upon the Final Payment Date.
3NOTERMINATION WITHOUT NOTICE
3.1Subject only to paragraph 3.2, CHP may serve notice terminating the Project Agreement at any time if it is entitled to do so under the terms of the Project Agreement.
3.2CHP shall not terminate or serve notice terminating the Project Agreement in respect of a Project Co Event of Default or Prohibited Act without giving to the Agent:
3.2.1at least the Required Period of prior written notice (a "Termination Notice") stating:
(a)that a Project Co Event of Default or a Prohibited Act (as the case may be) has occurred and the proposed Termination Date; and
(b)the grounds for termination in reasonable detail, and
3.2.2not later than the date falling twenty (20) Business Days after the date of a Termination Notice a notice containing details of any amount owed by Project Co to CHP, and any other liabilities or obligations of Project Co of which CHP is aware (having made proper enquiry) which are:
(a)accrued and outstanding at the time of the Termination Notice; and/or
(b)which will fall due on or prior to the end of the Required Period, under the Project Agreement.
3.3On becoming aware of an Enforcement Event the Agent shall give notice thereof to CHP stating that an Enforcement Event has occurred and giving reasonable details thereof (an "Enforcement Event Notice") whereupon, subject to payment by the Agent of CHP’s reasonable costs and expenses in respect thereof (being such costs and expenses as would not have been incurred in respect of the provision of such information had an Enforcement Event Notice not been served) the provisions of Clause 3.2.2 shall apply as if references therein to a Termination Notice were to an Enforcement Event Notice.
4NOLIQUID MARKET
4.1At any time during the Required Period the Agent may issue a written notice (the "No Liquid Market Notice") to CHP setting out the reasons why the Agent does not believe that a Liquid Market exists.
4.2On or before the date falling fourteen (14) days after the date on which a No Liquid Market Notice is received by CHP, CHP shall notify the Agent of its opinion as to whether or not a Liquid Market exists. Where CHP believes that a Liquid Market does exist, such notice shall set out the reasons for CHP's belief. If the parties do not agree whether or not a Liquid Market exists, then either party may refer the dispute to be determined in accordance with Clause 56 (Dispute Resolution Procedure).
4.3If the parties agree or it is determined in accordance with Clause 56 (Dispute Resolution Procedure) that no Liquid Market exists, the Project Agreement shall automatically terminate and the provisions of paragraph 4 of Schedule 23 Part B (No Retendering) shall apply.
4.4If any dispute relating to this paragraph 4 is determined under Clause 56 (Dispute Resolution Procedure), the Required Period shall be extended by the period of time spent determining such dispute under Clause 56 (Dispute Resolution Procedure).
5NOT USED
6REPRESENTATIVE
6.1Subject to paragraph 6.2 and without prejudice to the Agent's rights under the Security Documents, the Agent may give CHP a Step-In Notice at any time:
6.1.1during which a Project Co Event of Default or a Prohibited Act or an Enforcement Event[12] is subsisting (whether or not a Termination Notice has been served); or
6.1.2during the Required Period.
6.2The Agent shall give CHP not less than five (5) Business Days prior notice of:
6.2.1its intention to issue a Step-In Notice; and
6.2.2the identity of the proposed Appointed Representative.
6.3On the issue of the Step-In Notice, the Appointed Representative shall assume jointly with Project Co the rights of Project Co under CHP Project Documents and thereafter, until the end of the Step-In Period CHP shall deal with the Appointed Representative and not Project Co.
7STEP-IN PERIOD
7.1Notwithstanding paragraph 3, CHP may terminate the Project Agreement if:
7.1.1any amount referred to in paragraph 3.2.2(a) above has not been paid to CHP on or before the Step-In Date; or
7.1.2any amount referred to in paragraph 3.2.2(b) has not been paid on or before the last day of the Required Period;
7.1.3amounts, of which CHP was not aware (having made proper enquiry) at the time of the Termination Notice, subsequently become payable and are not discharged on or before the date falling twenty (20) Business Days after the date on which the liability of Project Co for these amounts is notified to the Agent or if later the Step-In Date; or
7.1.4grounds arise after the Step-In Date in accordance with the terms of the Project Agreement provided that Service Failure Points and/or Warning Notices that arose pursuant to Schedule 18 prior to the Step In Date shall not be taken into account during the Step In Period but such Service Failure Points and/or Warning Notices (to the extent applicable under the terms of the Project Agreement) shall be taken into account after the Step Out Date.
7.2CHP shall not terminate the Project Agreement during the Step-In Period on grounds:
7.2.1that the Agent has served a Step-In Notice or enforced any Security Document; or
7.2.2arising prior to the Step-In Date of which CHP was aware (having made proper enquiry) and whether or not continuing at the Step-In Date unless:
(a)the grounds arose prior to the Actual Completion Date, and the Actual Completion Date does not occur on or before the date twelve (12) months after the date on which CHP would have been entitled to terminate the Project Agreement for non-completion of the Works under Clause 44.1.2 of the Project Agreement; or
(b)the grounds arose after the Actual Completion Date, and neither the Appointed Representative nor Project Co is using all reasonable endeavours (including implementation of any remedial programme) to remedy any breach of the Project Agreement that:
(i)arose prior to the Step-In Date; and
(ii)which is continuing (and capable of remedy); and
(iii)which would have entitled CHP to terminate the Project Agreement; or
(iv)the grounds (whenever they first arose) did not give rise to any right to terminate until after the Step-In Notice; or
(c)arising solely in relation to Project Co
8STEP-OUT
8.1The Appointed Representative may at any time during the Step-In Period deliver to CHP a Step-Out Notice which shall specify the Step-Out Date.
8.2On expiry of the Step-In Period: