Transport for LondonPPP Contracts
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PART R: MISCELLANEOUS |
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Heritage and records |
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Preservation of Heritage |
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51.1 Infraco shall, where appropriate, in accordance with the provisions of section 144 of the Transport Act 1968: (b) lend or, if Infraco elects, physically transfer ( without consideration ) Railway Heritage Features on decommissioning to the LT Museum or TfL Archive ( as appropriate ) or in future custody of the LT Museum or TfL Archive ( as appropriate ) or into the custody of the LT Museum if requested to do so by the LT Museum, TfL Archive or LUL; and (c) at LUL's cost, clean and make any repairs to the Railway Heritage Features as LUL may reasonably require before any such loan or transfer is made in accordance with clause 51.1(b). |
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Expenses of Transfer |
| 51.2 LUL shall compensate Infraco for any costs reasonably incurred by Infraco in transferring, legally or physically, any Railway Heritage Features into the possession of the LT Museum, the TfL Archive or LUL. |
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Identification of Heritage |
| 51.3 As soon as reasonably practicable before the end of the useful life of an Asset which LUL, the LT Museum or the TfL Archive considers to be Railway Heritage Features, LUL shall notify Infraco, either in writing or by reference to the approved collecting policy and collecting schedules of the LT Museum or the TfL Archive from time to time, that it considers such an Asset to be Railway Heritage Features. |
| 51.4 Infraco shall put in place suitable retention management arrangements for assets and records to ensure that Railway Heritage Features are capable of identification prior to their replacement or disposal. |
| 51.5 Infraco shall give written notice to the LT Museum, the TfL Archive and LUL of its plans to replace or dispose of Railway Heritage Features and provide such reasonable assistance to enable a decision to be taken by LUL, the LT Museum or the TfL Archive as to whether such Railway Heritage Features should be preserved by the LT Museum, the TfL Archive or LUL. |
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Access to Heritage |
| 51.6 LUL shall use all reasonable endeavours to assist Infraco in obtaining such access to Railway Heritage Features as it may require for operational or development purposes in relation to the performance of its obligations under the Contract. |
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Access to Records |
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51.7 Except as otherwise provided under the Contract and subject to arrangements for access to the Deeds Room as set out in the Contract and subject to any arrangements for Information subsequently put into place, Infraco shall be entitled to access as is reasonable in all circumstances to any other records held by LUL, and LUL shall allow such access, if such records are reasonably necessary: (b) on health and safety grounds; or (c) to provide the Services under the Contract, |
| 51.8 LUL shall use reasonable endeavours to maintain and preserve any records held by it to which Infraco is entitled to access to pursuant to clause 51.7. LUL shall not be liable to Infraco for any accidental or unintentional loss or damage to such records. |
| 51.9 LUL shall be under no obligation to assist Infraco in retrieving and returning records, except to the extent that LUL shall, acting reasonably, assist and help Infraco in identifying records relevant to it and Infraco shall agree with the LUL Contract Manager which records Infraco is entitled to access under clause 51.7 above. |
| 51.10 If a Dispute arises between the parties as to whether access to records under clause 51.7 is reasonably necessary for the reasons outlined therein, either party may refer the matter for resolution in accordance with the procedure set out in the Dispute Resolution Agreement. |
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Expenses of Retrieval and Return |
| 51.11 Infraco shall compensate LUL for any costs reasonably incurred in the retrieval and return of records by LUL ( or the holder of such records from time to time ( being the TfL records centre or otherwise ) ). |
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Infraco Records |
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51.12 Subject to clauses 15 ( Audit ) and 48 ( Disclosure of Information ), Infraco shall make available for inspection and copying, at such times as LUL may reasonably require, all records held by Infraco that: (b) are reasonably necessary for the purposes of any legal proceedings, court order, Dispute and/or any other form of dispute resolution process ( other than against Infraco ), |
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Heritage Trains |
| 51.13 LUL shall have the right, in respect of each Line to run Heritage Rolling Stock provided LUL complies with clause 17 ( LUL Specified Rights ) with respect thereto and clause 1.2.8 ( Temporary Changes to Working Timetables ) of Schedule 2.1 ( Service Outputs ) with respect thereto. |
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Acceptance of Network Condition and Terms |
| 52.1 Save as expressly contained in any of the Transaction Documents all representations, warranties, conditions and other terms ( including warranties and conditions as to title, quiet possession, satisfactory quality fitness for purpose and description ) express or implied, by statute or otherwise, in respect of any of the Infraco Network or the Premises shall be excluded and no representations or warranties are made about the condition of any of the Infraco Network or the Premises or their suitability for purpose or the right of Infraco to use any of them. |
| 52.2 Without prejudice to the provisions of Schedule 1.5 ( Property Provisions and Documentation ) and without prejudice to the provisions of clauses 24.5(c)(v) and 24.5(c)(ix), Infraco acknowledges that it has had full and adequate opportunity to investigate, inspect, and/or survey all of the Infraco Network and Premises and their surroundings and in general to obtain for itself all necessary information as to risks and contingencies and all other circumstances affecting the terms of the Contract, the Master Definitions Agreement and the other Transaction Documents, the NLTSC Step-in Agreements or any other document to be entered into between the parties as contemplated by the Contract before entering into them, and therefore that it shall be deemed to have full knowledge of any matters which would be revealed by an investigation, inspection and/or survey ( whether or not made ). |
| 52.3 Infraco agrees that the terms and conditions of this Contract and the exclusions and limitations it contains are fair and reasonable in the context of this transaction and in particular, in the light of the procedure for finalising the Contract which has taken place and the substantial amounts of information already made available to Infraco. |
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Tax |
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General Taxation |
| 53.1 If any amount payable by either party under the Contract by way of indemnity, compensation or reimbursement is subject to any Tax in the hands of the recipient and thus proves to be insufficient either to discharge the corresponding liability to a third party or to reimburse the recipient for the cost incurred by it in discharging such corresponding liability, the amount payable shall be increased to such an amount as ( after taking into account the benefit of any deduction or relief from taxation obtained by the recipient in respect of any corresponding amount paid or payable by the recipient to a third party, or the obligation giving rise to the same, and the time at which such benefit is obtained ) is required to put the recipient in the same after-tax position as ( taking into account the time value of money ) the recipient would have been in had the circumstances giving rise to the indemnity, compensation or reimbursement not occurred provided that this clause 53.1 shall not, if it otherwise would, apply to any payments in respect of disposition or Mandatory Sale of the Contract under clause 41 ( Mandatory Sale ). If payment of any such indemnity, compensation or reimbursement is initially made on the basis that (a) it is not subject to Tax in the hands of the recipient and it is subsequently determined that it is or (b) that it is subject to an amount of Tax in the hands of the recipient and it is subsequently determined that it is subject to no Tax or an alternative amount of Tax in the hands of the recipient, such adjustment shall be made between the parties as shall be required in order to restore the after-tax position of the recipient to what it would have been had the adjustment not been necessary. |
| 53.2 Without prejudice to the generality of clause 53.1, if and to the extent that any sum ( for the purposes of this clause 53.2, Indemnity Sum ) constituting ( directly or indirectly ) an indemnity, compensation or reimbursement to either party ( for the purposes of this clause 53.2, the Payee ) but paid by the other party ( for the purposes of this clause 53.2, the Payer ) to any person other than the Payee shall be treated as taxable in the hands of the Payee, the Payer shall promptly pay to the Payee such sum ( for the purposes of this clause 53.2, the Compensating Sum ) as ( after taking into account (i) any deduction for tax purposes obtained by the Payee in respect of the payment of, or the matter giving rise to, the Indemnity Sum, (ii) any taxes suffered by the Payee on the Compensating Sum and ( iii ) the time value of money ) shall reimburse the Payee for any taxes suffered by it in respect of the Indemnity Sum provided that this clause 53.2 shall not, if it otherwise would, apply to any payments in respect of Mandatory Sale of the Contract under clause 41 ( Mandatory Sale ). |
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VAT |
| 53.3 All sums payable under or provided for in ( including in accordance with clause 40 ( Warning Notices and Default Notices ) and clause 41 ( Mandatory Sale ) on mandatory sale or contract disposition ) the Contract shall be exclusive of VAT, if any. Subject to clause 53.4 below, if VAT is chargeable on any supply under the Contract the recipient of the supply shall pay any VAT on that supply subject to prior receipt of a valid VAT invoice in respect of the supply complying with the VAT Regulations 1995; and the payer shall not be liable for any interest or penalties arising to the extent that such a VAT invoice is not issued in respect of such supply. Any VAT invoice issued under this clause 53.3 shall (i) state whether it is a VAT invoice, (ii) show all amounts exclusive of VAT, ( iii ) show VAT as a separate amount and (iv) state separately the relevant rates of VAT for each supply to which it relates. |
| 53.4 Where under the Contract any amount is calculated by reference to any sum which has been or may be incurred by any person, the amount shall not include any VAT ( if any ) except any VAT incurred by a person to the extent to which that person, or any VAT group of which it is a member, cannot recover such VAT whether by way of credit against a liability to account for VAT or as an actual repayment from HM Customs and Excise ( and, in the case of Infraco, only to the extent to which it or any VAT group of which it is a member would not have been able to recover such VAT if the only activities carried on by it were confined to the performance of its obligations and the exercise of its rights in relation to the Transaction Documents ). |
| 53.5 For the avoidance of doubt, where any payment to which Infraco is entitled under the Contract ( for the purposes of this clause 53.5, each a Contract Payment ) is abated under the provisions of the Contract any VAT payable by LUL pursuant to the Contract shall be no greater than the VAT properly chargeable on the net amount of the Contract Payment so abated ( but so that the foregoing provisions of this clause 53.5 shall not apply where and to the extent that such abatement does not reduce the value of the relevant supply made by Infraco for VAT purposes for which the Contract Payment is consideration ). |
| 53.6 Where any amount paid or payable under the Contract is increased or decreased and as a result the value of the consideration for a taxable supply ( as defined by section 4(2) of the Value Added Tax Act 1994 ) is adjusted, an additional payment or a repayment shall be made equal to the appropriate adjustment in respect of VAT due on the adjusted amount paid or payable and a credit or debit note provided accordingly. |
| 53.7 Infraco shall provide LUL with any information reasonably requested by LUL in relation to the amount of VAT chargeable in accordance with the Contract and payable by LUL to Infraco. |
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Construction Industry Scheme |
| 53.8 If Infraco is a "subcontractor" for the purposes of Sections 559 to 567 of the Income and Corporation Taxes Act 1988 ( the Taxes Act ) and the Income Tax ( Sub-contractors in the Construction Industry ) Regulations 1993 ( as amended by the Income Tax ( Sub-contractors in the Construction Industry ) ( Amendment ) Regulations 1998 ) ( the CIS Regulations ) and the Taxes Act and the CIS Regulations require Infraco as a "subcontractor" to obtain a valid tax certificate ( a CIS Certificate ) for it to receive payments which are not subject to the statutory deduction referred to in section 559(4) of the Taxes Act ( the CIS Statutory Deduction ), Infraco will use its best endeavours to obtain a CIS Certificate so that LUL may be entitled to make any and all payments which it makes to Infraco pursuant to the Contract free and clear from the CIS Statutory Deduction. |
| 53.9 If Infraco successfully obtains a CIS Certificate pursuant to clause 53.8, it will use its best endeavours to ensure that the CIS Certificate remains valid and will notify LUL if for any reason the CIS Certificate ceases to be valid. While Infraco has a valid CIS Certificate it will, at LUL's reasonable request, make available to LUL either the CIS Certificate or a valid certifying document evidencing its possession of a valid CIS Certificate. |
| 53.10 If Infraco for any reason ( other than the fact that it is exempted from the need to do so by the Taxes Act or the CIS Regulations ) fails to obtain a CIS Certificate as referred to in clause 53.8 or fails to ensure that the CIS Certificate remains valid, Infraco shall, if so required by the Taxes Act and the CIS Regulations, obtain a valid registration card ( a CIS Registration Card ) for it to receive payments subject to the CIS Statutory Deduction. Infraco shall, at LUL's reasonable request, make available to LUL any CIS Registration Card and will notify LUL if for any reason a CIS Registration Card ceases to be valid. If Infraco obtains a CIS Registration Card in accordance with this clause 53.10, then LUL shall make all applicable payments to Infraco subject to the CIS Statutory Deduction. In the event that any error or omission occurs in making the CIS Statutory Deduction then, in the case of an over-deduction LUL shall pay the sum over-deducted to Infraco and in the case of an under-deduction, Infraco shall pay the balance of the sum which should have been deducted to LUL, so that, in both cases, the error or omission shall be corrected. |
| 53.11 If Infraco is required by the Taxes Act or the CIS Regulations to obtain a CIS Certificate or a CIS Registration Card before LUL may make a payment to Infraco, LUL shall not be required to make any such payment until Infraco has shown LUL, to LUL's reasonable satisfaction, that Infraco has obtained a valid CIS Certificate or a valid CIS Registration Card and that such CIS Certificate or CIS Registration Card is currently valid and in effect. |
| 53.12 References in clauses 53.8 to 53.11 to "subcontractor", the "CIS Regulations" and the "CIS Statutory Deduction" shall include references to the equivalent words and phrases under any statutory regime represented by those words and phrases. |
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Lease Premium |
| 53.13 Infraco acknowledges that the obligations imposed on it under the Contract do not involve a deemed lease premium by virtue of section 34(2) of the Taxes Act. Infraco agrees that it will not take the position in any computations, return, self-assessment or otherwise that a deemed lease premium has arisen and accordingly shall not seek any deduction ( in respect of deemed rent or otherwise ) referable to such a premium under section 37 or section 87 of the Taxes Act, whether by virtue of section 34(2) or otherwise. |
| 53.14 Infraco shall in each Payment Period, at the written request of LUL, provide to LUL a certificate signed by Infraco's auditors certifying that, in the Payment Period or Payment Periods to which such request relates, the provisions of clause 53.13 above have been complied with. |
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Survival |
| 54 Those provisions of the Contract ( including any appropriate schedules ) which by their nature or implication ( including in respect of any accrued rights and liabilities ) are required to survive expiry of the Contract ( including the provisions of clauses 18 ( Payment Provisions ), 24 ( Indemnity ), 48 ( Disclosure of Information ), 49 ( Dispute Resolution ), 50 ( Claims ), 67 ( Governing Law and Jurisdiction ) shall so survive and continue in full force and effect, along with any other clauses or schedules of the Contract necessary to give effect to them. |
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Hedging |
| 54A.1 The parties shall enter into the Hedging Implementation Deed. |
| 54A.2 Infraco agrees to enter into, execute and deliver the Hedging Agreements ( as defined in the Hedging Implementation Deed ) on the terms contemplated by and within the financial limits contained in and in accordance with the criteria and procedures set out in the Hedging Implementation Deed. |
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Notices |
| 55.1 Subject to clauses 55.2 and 55.3, any notice affecting the Contract or required to be given under the Contract ( the Notice ) shall be in writing and signed by the Contract Manager for the party giving it on behalf of that party and shall be served as an attachment to electronic mail ( in which case a copy of the attachment must be followed up by courier on the Friday of the week in which it was sent by electronic mail. ) or by leaving it at, or sending it by fax, prepaid recorded delivery or special delivery registered post to the address and for the attention of the Contract Manager of the other party. |
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55.2 Any ISC Invoices shall be in writing and signed by the Contract Manager of Infraco on behalf of Infraco and shall be served by leaving it at, or sending it by prepaid recorded delivery or special delivery registered post to: LUL Accounts Payable 4 th Floor West 55 Broadway SW1H 0BD or such person or address as LUL may from time to time notify in writing to Infraco. |
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55.3 Proof of posting or despatch of any notice or communication shall be deemed to be proof of receipt: (b) in the case of fax, the Business Day after the despatch; (c) in the case of recorded delivery or special delivery registered post, two (2) Business Days from the date of posting; (d) in the case of electronic mail, the Business Day after dispatch; |
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55.4 Notices or communications referred to in clause 55.1 affecting the Contract shall in the case of LUL be addressed to: 3rd Floor, East Wing Albany House Petty France London SW1H 9EA
luljnpcontracts@tube.tfl.gov.uk or such person or address as the Relevant Party may from time to time notify in writing to the other. |
| 55.5 Notices not governed by clause 55.1 or 55.2 may be given in such manner as the parties may from time to time agree. |
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Waiver |
| 56.1 The failure of either party at any time to enforce any provision of the Contract shall in no way affect its right to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any provision, or be a waiver of the provision itself. |
| 56.2 Save as expressed to the contrary in the Contract, each party's rights and remedies under the Contract are cumulative and shall not apply to exclude or limit any right or remedy at law or any claim for equitable relief. |
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Assignment and Variations |
| 57.1 Subject to clause 57.3, Infraco shall not purport to assign, transfer, charge or otherwise deal with the Contract ( or any or all of its rights or obligations under the Contract ) nor grant, declare a trust of, create or dispose of any right or interest in it without the prior written consent of LUL, provided that LUL shall not withhold such consent if such assignment, transfer or charge is in respect of amounts receivable under the Contract and is entered into by Infraco by way of security which is expressly subject to the limitations in the Contract, and Infraco shall not purport to assign, transfer, or charge the Infraco Leases or Depot Sub-leases to Infraco, or any premises demised by each or any of them, other than as permitted by and in accordance with clauses 57.1A to 57.1E below. |
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57.1A Notwithstanding the provisions of clause 57.1 above, Infraco may include the Premises, the Office Accommodation Properties, the Acton Works Premises or any premises comprised in a Depot Sub-lease to Infraco ( together, the Floating Charge Premises ) in any floating charge ( a Floating Charge ), provided that: (b) such Floating Charge is made expressly subject to any applicable limitations in the Contract and the Greater London Authority Act, including ( but not limited to ) an express agreement on the part of any Funder and/or other Charge-holder to the restrictions contained in the Contract and the Greater London Authority Act on any Charge-holder's ability to dispose of, or otherwise deal with, any Floating Charge Premises; (c) such Floating Charge complies with the provisions of clauses 57.1B(c), (d), (f) and (g) of the Contract in the event that any Event of Crystallisation occurs in respect of or relating to any Floating Charge Premises; (d) such Floating Charge expressly permits the grant of the Underlease and all dealings with LUL's Premises, including ( but not limited to ) any dealings anticipated by the Transfer Scheme, the Transaction Documents, the PFI Contracts and all relevant Legislation; (e) Infraco has given LUL reasonable prior written notice ( including a copy of the draft of any proposed Floating Charge ) of its intention to create any such Floating Charge and obtained LUL's approval of the fact that the terms of such Floating Charge are in accordance with this clause 57.1A ( such approval not to be unreasonably withheld ); and (f) such Floating Charge shall include the provisions contained in clause 57.1D of the Contract. |
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57.1B Notwithstanding the provisions of clause 57.1 above, Infraco may include those parts of the Premises, the Office Accommodation Properties, the Acton Works Premises or any premises comprised in a Depot Sub-lease to Infraco in relation to each of which LUL holds the freehold reversion ( not being merely a freehold reversion by estoppel ) ( together, the Fixed Charge Premises ) in a fixed charge ( the Fixed Charge ), provided that: (b) such Fixed Charge is made expressly subject to any applicable limitations in the Contract and the Greater London Authority Act, including ( but not limited to ) an express agreement on the part of any Funder and/or other Charge-holder to the restrictions contained in the Contract and the Greater London Authority Act on any charge-holder's ability to dispose of, or otherwise deal with, any Fixed Charge Premises; (c) such Fixed Charge provides that in the event of any Termination of Part, surrender or any other determination howsoever occurring of any lease pursuant to which Infraco holds the Fixed Charge Premises, then such parts of the Fixed Charge Premises to which the Termination of Part, termination, surrender or other determination relates shall be automatically and immediately released from any Fixed Charge; (d) such Fixed Charge shall expressly permit the grant of the Underlease and all dealings with LUL's Premises, including ( but not limited to ) any dealings anticipated by the Transfer Scheme, the Transaction Documents, the PFI Contracts and all relevant Legislation; (e) Infraco has given LUL reasonable prior written notice ( including a copy of the draft of any proposed Fixed Charge ) of its intention to create any such Fixed Charge and obtained LUL's approval of the fact that the terms of such Fixed Charge are in accordance with this clause 57.1B ( such approval not to be unreasonably withheld ); (f) such Fixed Charge shall not be registered pursuant to the Land Charges Act 1972 or at HM Land Registry; and (g) such Fixed Charge shall include the provisions contained in clause 57.1D of the Contract. |
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57.1C In relation to the Premises, the Office Accommodation Properties, the Acton Works Premises and/or any premises comprised in a Depot Sub-lease to Infraco, Infraco shall: (b) not give any notice of the creation of ( or the intention to create ) any Charges to any third party; and (c) procure that no steps to obtain any such consents are taken, nor any such notice is given, by (i) any of the Funders, or Charge-holders ( if different ), (ii) any Connected Person and/or ( iii ) any group or parent company of Infraco, |
| 57.1CA Infraco agrees that LUL shall not be under any obligation to obtain any consent of any third party to, or give any notice to any third party of, the creation ( or the intended creation ) of any Charges. |
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57.1D Infraco shall procure that the Security Documents contain the following provisions: |
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(a) if any Security Asset becomes the subject of a Transfer Scheme, it shall be fully and automatically released from the relevant Security Interest immediately before the coming into force of that Transfer Scheme; |
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(b) no Security Interest may be enforced or enforceable until the date of such Security Asset ceasing to be designated as a Key System Asset other than for the appointment, by the holder of the Security Interest, of an administrative receiver, provided such administrative receiver shall not be entitled to, and shall not exercise any power to, sell, lease or otherwise dispose of or deal with any interest in any such Security Asset other than in accordance with paragraph 3 of Schedule 5.9 ( Key System Assets ) to the PPP Contract or with the relevant authority's ( as such term is defined under the GLA Act ) prior written consent; |
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(c) in relation to the Premises, the Office Accomodation Properties, the Acton Works Premises and/or any premises comprised in a Depot Sub-lease to Infraco, the Security Trustee shall not take any steps to obtain the consent of any third party to the creation of any Charges; and |
| (d) in relation to the Premises, the Office Accomodation Properties, the Acton Works Premises and/or any premises comprised in a Depot Sub-lease to Infraco, the Security Trustee shall not give any notice of the creation of ( or the intention to create ) any Charges to any third party." |
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57.1E Infraco shall: (b) not enter into any Charge other than in a form previously approved by LUL under clause 57.1A(e) or 57.1B(e) above; (c) not vary the terms of any Charge once entered into from those approved under clause 57.1A(e) or 57.1B(e) above; and (d) at its own cost enforce the terms of the Charges as required by clauses 57.1A to 57.1D ( inclusive ) of the Contract, and procure for LUL the release(s) of such Charges as LUL may reasonably require in order to give effect thereto. |
| 57.1F Infraco shall not purport to assign, transfer, charge or otherwise deal with any Relevant Agreement or Other Transaction Document ( or any or all of its estate rights or obligations under any Relevant Agreement or Other Transaction Document ) nor grant, declare a trust of, create or dispose of any right or interest in it without the prior written consent of LUL provided that LUL shall not withhold such consent if such assignment, transfer or charge is in favour of any of the Funders as security for Infraco's obligations under the relevant Funding Agreements, to the extent that such assignment, transfer or charge in all cases complies with clause 57.1D. |
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57.1G Infraco shall: (b) not without the prior written consent of LUL ( such consent not to be unreasonably witheld or delayed ) vary the terms of any such assignment, transfer or charge consented to by LUL under clause 57.1F of the Contract. |
| 57.2 Any variation to the Contract that is not a change made pursuant to clause 27 ( Review ) and Schedule 1.9 ( The Statutory Arbiter and Reviews ) shall only be effective if made in accordance with Schedule 5.8 ( Change ). |
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57.3 |
| (a) LUL is hereby notified that Infraco has assigned by way of security all of its right, title, interest and benefit, present and future, in, to and under this Contract to the Borrower Security Trustee, that the beneficiaries ( other than the Issuer ) of the rights held by the Borrower Security Trustee have assigned their beneficial interest to the Issuer and that the Issuer as sole beneficiary of the rights held by the Borrower Security Trustee pursuant to the assignment referred to above has subsequently assigned, by way of security, all of its right, title, interest and benefit, present and future, in, to and under this Contract to the Issuer Security Trustee; |
| (b) LUL agrees that it shall, pursuant to the assignments referred to in paragraph (a) above and subject to paragraphs (d) and (e) ( but without prejudice to its rights under clause 41.13(f) of this Contract ), pay all sums payable by LUL under clauses 41.2A, 41.3, 41.3A, 41.5(e), 41.6B, 41.13 and 41.14 of this Contract ( and shall procure that any payments due to Infraco in the event of a Contract Sale to an LUL Nominee shall be paid ) directly to the Issuer Security Trustee into a bank account nominated for the purpose by the Issuer Security Trustee; and |
| (c) LUL acknowledges as at the date hereof that it has been notified of the assignments referred to in paragraph (a) above and that it has not received any other notice relating to the assignment of Infraco's rights under this Contract; and |
| (d) LUL agrees that it shall, subject to paragraph (e) ( and without prejudice to its rights under clause 41.13(f) of this Contract ), following the exercise of the Option and the payment by LUL of the Put Option Price ( in each case as defined in and pursuant to the Put Option Agreement ) ( together with interest thereon calculated in accordance with clause 3.1, any interest calculated in accordance with clause 21 and any amounts payable pursuant to clause 8 ( in each case of the Put Option Agreement ) ) in full to the Issuer Security Trustee, pay all sums payable by LUL under clauses 41.2A, 41.3, 41.3A, 41.5(e), 41.6B, 41.13 and 41.4 of this Contract ( and shall procure that any payments due to Infraco in the event of a Contract Sale to an LUL Nominee shall be paid ) directly to the Borrower Security Trustee into a bank account nominated for the purpose by the Borrower Security Trustee; and |
| (e) LUL agrees ( without prejudice to its rights under clause 41.13(f) of this Contract ) that following the release of the Borrower Deed of Charge and the Issuer Deed of Charge ( each as defined in the Put Option Agreement ), pay all sums payable by LUL under clauses 41.2A, 41.3, 41.3A, 41.5(e), 41.6B, 41.13 and 41.14 of this Contract ( and shall procure that any payments due to Infraco in the event of a Contract Sale to an LUL Nominee shall be paid ) directly to Infraco. |
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57.4 Any payments made to the Issuer Security Trustee or Borrower Security Trustee under clauses 57.3 (b) or (d) as the case may be in respect of amounts payable by LUL under clauses 41.2A, 41.3, 41.3A, 41.5(e) and 41.6B shall ( save to the extent that the relevant amount has already been set off from the ISC by LUL pursuant to clause 41.2A ) discharge LUL's payment obligations to Infraco pro tanto. |
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57.5 Any payments made to the Issuer Security Trustee or the Borrower Security Trustee under this clause 57 which is otherwise an amount due to be paid to Infraco shall be deemed to be received by Infraco when received by the Issuer Security Trustee or Borrower Security Trustee. For the purposes of clauses 57.3, 57.4 and 57.5: Borrower Security Trustee means The Law Debenture Intermediary Corporation p.l.c. and includes any person or company for the time being acting as borrower security trustee under Infraco's debt financing arrangements; and Issuer Security Trustee means The Law Debenture Trust Corporation p.l.c. and includes any person or company for the time being acting as issuer security trustee under Infraco's debt financing arrangements. |
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Severability |
| 58 Should any provision of the Contract be held to be invalid or unenforceable or become illegal or void, then such provision shall, so far as it is invalid or unenforceable or illegal or void, be given no effect and shall be deemed not to be included in the Contract but without invalidating any of the remaining provisions of the Contract. The parties shall then use all reasonable endeavours to replace the invalid, unenforceable, illegal or void provision with a valid provision, the effect of which is the closest possible to the intended effect of the invalid, unenforceable, illegal or void provision. |
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Further Assurances |
| 59 The parties shall, with all due diligence on or after the Start Date, execute all such deeds and documents and perform all such acts and things and provide such assistance and information as may reasonably be required to carry out the terms of the Contract. |
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Language |
| 60 English shall be the language of the Contract and all documentation or information required or produced in connection with the Contract shall be in English. |
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Costs |
| 61 Unless expressed to the contrary in the Contract, each party shall bear its own costs and expenses in connection with the preparation, negotiation, execution, registration, carrying into effect and performance of its obligations under the Contract and all matters related to or connected with it. |
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Entire Agreement |
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62.1 The Transaction Documents, the Ancillary Agreements, the NLTSC Step-in Agreements and any other document to be entered into between the parties as contemplated by the Contract set out the entire agreement and understanding between LUL and Infraco. It is agreed between the parties ( for themselves and for the purposes set out in clause 62.2 ) that: (b) neither party shall have any remedy in respect of misrepresentation or untrue statement made by the other party unless and to the extent that a claim lies for breach of warranty under the foregoing documents. |
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62.2 Infraco for itself and as agent for the Initial Shareholders hereby agrees with LUL for itself and as agent and trustee for and on behalf of its respective employees, directors, representatives, advisers, servants and agents: (b) that Infraco, its respective employees, directors, representatives, advisers, servants and agents waive and will not enforce any right which they might otherwise have against LUL, its employees, advisers or agents by virtue of any misstatement, inaccuracy or omission in or from or otherwise in relation to any information or expressions of opinion or future intention or any forecast, speculation, assessment, projection, illustration, estimate, budget or advice supplied or given to Infraco or any related party or any other person in connection with the subject matter of the documents referred to in clause 62.1, |
| 62.3 Nothing in clauses 62.1 and 62.2 shall exclude any liability for fraudulent misrepresentation. |
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62.4 (b) Where Infraco breaches the obligations to provide the Train Services or the Station Services set out in Schedule 2.1 ( Service Outputs ) or to meet a Condition Benchmark or Residual Life Benchmark in accordance with Schedule 3.2 ( Reasonable Life Expectancy, Condition Benchmarks and Residual Life Benchmarks ) and as a result LUL makes a payment adjustment through the mechanisms set out in Schedule 4.1 ( Performance Payment Mechanism ) and the Performance Measurement Code, LUL shall not be entitled to claim any further financial remedy in respect of the specific breach of those provisions, but shall be entitled to claim any remedy otherwise available to it under the Contract ( subject to clause 62.4(a)): (i) in relation to Schedule 3.2 ( Reasonable Life Expectancy, Condition Benchmarks and Residual Life Benchmarks ) in respect of the underlying events that give rise to that breach where such events have caused Losses of a different nature from the direct loss of service or asset condition in respect of which the adjustment was made; and (ii) in relation to paragraph 7 ( Limit of LUL Remedies ) of Schedule 2.1 ( Service Outputs ) of the Contract, in respect of events giving rise to a failure enumerated in paragraph 7.1 of Schedule 2.1, to the extent that such events were caused by a breach of Infraco Obligations ( other than a breach of Infraco Obligations as set out in such paragraph 7.1 ). (c) This clause 62.4 shall apply to the rights and remedies of either party arising out of the Transaction Documents and the Ancillary Agreements or any other document, in tort, quasi-contract or breach of contract or in any other way notwithstanding negligence or any breach of any statutory or other duty by, or on behalf of, the other party. |
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Application of statutes |
| 63.1 The parties acknowledge and agree that the Contract is entered into by them under a project applying similar principles to the private finance initiative, as referred to in the Construction Contracts ( England and Wales ) Exclusion Order 1998 ( SI 1998 No. 648 ). |
| 63.2 The parties acknowledge and agree that if the Contract is, at any time, designated as a PPP agreement for the purposes of section 210 of the GLA Act, the parties forthwith shall endorse the original executed versions of the Contract with a certificate in such form as LUL may reasonably require that this Contract is a PPP lease for the purposes of s218(2) of the GLA Act. |
| 63.3 A person who is not a party to the Contract shall have no right under the Contracts ( Rights of Third Parties ) Act 1999 to enforce any of its terms. |
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63.4 The provisions of: (b) the Transaction Documents; (c) those of the documents listed in Schedule 1 of the Dispute Resolution Agreement to which LUL and Infraco are parties ( whether with or without others ); and (d) any other document contemplated as being entered into by the Contract, |
| 63.5 The Issuer Security Trustee shall be entitled to enforce its rights under clauses 57.3(b) and 63.7 under the Contracts ( Rights of Third Parties ) Act 1999. |
| 63.6 The Borrower Security Trustee shall be entitled to enforce its rights under clauses 57.3(d) and 63.8 under the Contracts ( Rights of Third Parties ) Act 1999. |
| 63.7 Clauses 63.3 and 63.5 may not without the prior written consent of the Issuer Security Trustee be varied. |
| 63.8 Clauses 63.3 and 63.6 may not without the prior written consent of the Borrower Security Trustee be varied. |
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Change of Currency |
| 64 If at any time the Bank of England or other competent monetary authority of the United Kingdom or competent organ of H.M. Government of the United Kingdom recognises the Euro as lawful currency and tender of the United Kingdom, LUL may, by reasonable notice to Infraco and Infraco may by reasonable notice to LUL, elect that all payment obligations arising under the Transaction Documents shall be denominated and/or constituted in Euros on the basis that all outstanding amounts and obligations previously denominated and/or constituted in pounds sterling shall be translated into Euros at the exchange rate applied or recognised by the United Kingdom authority or organ which granted recognition of the Euro for the purpose of such translation on the date on which it granted recognition of the Euro. |
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Mitigation |
| 65 If any clause under the Contract operates in relation to one party ( the Mitigating Party ) to the detriment of the other party, such Mitigating Party shall, upon the request of the other party, enter into discussions with the other party with a view to determining what mitigating action might be taken by such Mitigating Party. Without limiting or reducing the obligations of the other party, the Mitigating Party shall, upon the written request and at the expense of the other party, take such reasonable steps as may be practical to mitigate or remove the effects of such circumstances, provided that nothing in this clause shall oblige the Mitigating Party to take any such step if, in the opinion of such Mitigating Party ( such opinion being conclusive ), any such step might reasonably be expected to have an adverse effect upon its business, operations or financial condition or the management of its affairs. |
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Default Interest |
| 66 If a party to the Contract ( the Defaulting Party ) fails to pay to the other party to the Contract any amount which has become due and payable in accordance with the Contract or any other Transaction Document under which no provision for interest is otherwise made the Defaulting Party shall pay to the other party interest on that amount from the date upon which the amount first became due to the date of actual payment ( as well after as before judgment ) at the Applicable Rate. |
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Governing Law and Jurisdiction |
| 67 Without prejudice to clause 49 ( Dispute Resolution ), the Contract shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales as provided for in clauses 9.1 and 9.2 ( Jurisdiction and Enforcement ) of the Dispute Resolution Agreement. |
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Northern Line Train Services Contracts |
| 68 Clauses 7.2 ( PFI Contracts ), 11A ( Northern Line Train Service Contract ), 11G ( Connect Enabling Works and Northern Line Radio ), 11J ( NLTSC ), 16.1 ( Co-operation ), 18.19 ( Payment Deductions ), 22.1(b), 22.3 ( Failure to comply with obligations ), 23.10, 23.11 ( LUL Step-in Rights - Northern Line ), 25.2, 25.3, 25.4 ( Insurance ), 40.1(c), 40.2(b), 40.2(c), 40.2(d) ( Excused breaches ), 40.5A, 45.2 ( Security Clearance ), 48.8(a), 52.2 ( Acceptance of Network Conditions and Terms ) and 62 ( Entire Agreement ) of, and paragraphs 21 and 21A of Part One of Schedule 1.9 to, the Contract shall not have effect in relation to the provision of services on the Northern Line or the Northern Line Train Service Contracts until the Northern Line Transfer Date. |
